Executive Powers and Civil Service Bill [HL]

– in the House of Lords at 11:05 am on 5th March 2004.

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Photo of Lord Grocott Lord Grocott Chief Whip (House of Lords), HM Household, Captain of the Honourable Corps of Gentlemen-at-Arms (HM Household) (Chief Whip, House of Lords) 11:05 am, 5th March 2004

My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Executive Powers and Civil Service Bill, has consented to place Her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament, for the purposes of the Bill.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

My Lords, I beg to move that this Bill be now read a second time. It is a constitutional measure creating a framework for better parliamentary scrutiny of the executive. Its first purpose is to place under parliamentary authority the executive powers exercised by Ministers by virtue of the Royal prerogative, including treaty-making. Secondly, it puts on a statutory footing the basic principles upon which the Civil Service is based and the ground rules governing the relationships between Ministers, civil servants, special advisers and Parliament. Thirdly, it establishes a procedure for the approval of some key public appointments.

Even though I have done it before in my two Human Rights Bills, it is unusual for a constitutional measure to be introduced as a Private Member's Bill. But such a Bill should have been introduced by the present Government several years ago. I look forward to learning from the Minister whether the Government intend at last to introduce a draft Civil Service Bill during the next few months and whether they support new machinery for the parliamentary scrutiny of treaty-making and for making key public appointments. The Minister's response—and I have written to him in advance on the issue—will enable me to decide whether to take the Bill through all its stages in this House if it is read a second time.

The ideas reflected in the Bill are not original. In 1854 the Northcote-Trevelyan report on the Organisation of the Permanent Civil Service recommended that the key principles and structures governing the Civil Service be enshrined in statute. The Bill gives effect in broad terms to recommendations made by the Committee on Standards in Public Life, Defining the Boundaries within the Executive: Ministers, Special Advisers and the permanent Civil Service, in its ninth report of April 2003. Sir Nigel Wicks who chaired that committee—my noble friend Lord Goodhart was a member of it—has said that the introduction of legislation to regulate the relationships between Ministers, civil servants, special advisers and Parliament could help to restore some of the public trust in central government and public office holders that has been lost in recent years.

I warmly welcome the recent publication by the Commons Public Administration Select Committee chaired by Dr Tony Wright MP of a draft Civil Service Bill. My Bill goes further, but both initiatives have the same common purpose of persuading the Government to introduce legislation worthy of the name. Dr Wright's Bill has been introduced in the other place and may have its Second Reading debate today. The Public Administration Select Committee is currently preparing a report on Parliament and the prerogative. That report is likely to be published within the next couple of weeks with another draft Bill. Obviously, that will be a very important initiative indeed. I hope that it may persuade the Government to be more ambitious. Rather than produce a narrow minimalist draft Civil Service Bill—although that would be better than nothing—I hope the Government will deal with the wider issues about prerogative powers that will be addressed by the Public Administration Select Committee. If necessary, and if the Bill is given a Second Reading, I shall seek to amend my Bill in the light of that committee's two reports and draft Bills.

We were all brought up to believe that there were two fundamental principles protected by our unwritten constitution: one was parliamentary supremacy, that the executive was accountable to Parliament rather than to the Sovereign; and, secondly, the principle of the rule of law, that public powers should be exercised according to the law of the land. The difficulty about our elastic and flexible unwritten constitution, with all its advantages, is to make sure that those principles apply in practice.

Should it be Parliament that is sovereign, to whom the executive is constitutionally accountable, or should it be the monarch? The view on which the Bill is based is that in our modern democratic society it should be Parliament, while preserving intact the personal prerogatives and immunities of the sovereign, like any other constitutional head of state.

Prerogative powers are a necessary incident of government. But it is surely anomalous that the Crown is able, on the basis of medieval notions of kingship, through the Queen's Ministers, to exercise public powers without parliamentary authority. It is time that Ministers and civil servants, in conducting Her Majesty's Government, do so under parliamentary authority. That is not a radical or republican view. The symbolic role of the monarch is unaffected, as are the sovereign's personal prerogatives. But public powers should be exercised with parliamentary rather than monarchical authority.

We also need better parliamentary scrutiny of treaty-making and of war powers. Treaties reach into every nook and cranny of our lives. It is anomalous that Parliament has almost no role in the process of ratification of important treaties and it is done entirely under the prerogative. In the European Union in relation to legislation there is scrutiny but there is no equivalent scrutiny for treaties generally, as—for example—the commission of the noble Lord, Lord Wakeham, pointed out in its proposals for Lords reform. I am delighted that the noble Lord will be taking part in this debate. This part of the Bill could be implemented without legislation if the Government were willing to give urgent and strong support for the recommendations made by the Wakeham commission. That support has so far not been forthcoming.

On war powers, it is entirely anomalous that there is no principle that parliamentary authority must be sought before we wage war, except in situations of grave emergencies, so grave that there is no time to consult Parliament. As regards appointments to public office, it seems entirely anomalous that appointments to key offices such as the Parliamentary Commissioner for Administration, the First Civil Service Commissioner—I am delighted that she will be taking part in this debate—and the chairs of the equality commissions are made by Ministers without any parliamentary advice or consent.

Clause 1 defines the executive powers that are to be placed under the authority of Parliament, but excludes rights and powers that belong to the Queen personally or to any other member of the Royal Family. The symbolic official functions of the Queen, such as summoning, prorogation and dissolution of Parliament and the giving of Royal Assent to Bills, will not be affected.

Clause 3 enables Parliament to approve treaties before they are ratified and to secure parliamentary approval before members of the Armed Forces are sent into combat. Clause 4 establishes a committee of both Houses to review the circumstances in which executive powers are exercised. It needs to be read with Schedule 1. Part 2 creates a statutory framework for the Civil Service structure in England, Wales and Scotland. During the 150 years since Northcote-Trevelyan, many have pressed for a coherent, statutory framework governing the functions of Ministers, civil servants and special advisers. I shall recall just a few recent examples.

In 1995, the first report of the Committee on Standards in Public Life was published under the chairmanship of the noble and learned Lord, Lord Nolan. By that stage, the Major Government had begun a process of consultation on whether the Civil Service should no longer be regulated under the prerogative, but under statute. The Nolan committee saw merit in the idea of a statutorily based Civil Service. I have included references in my speaking notes to where one finds these quotations, and they could conveniently be included in Hansard if the Editor thought that was useful for the House. I shall not weary the House by citing all the references now.

Shortly before the 1997 election, the Labour and Liberal Democrat parties set up a Joint Consultative Committee on Constitutional Reform, on which my noble friend Lord McNally and I served, together with my noble friend Lord Maclennan of Rogart. Both noble Lords are taking part in this debate. Our joint report identified common ground between the parties and said that:

"Both parties agree that there should be a Civil Service Act to give legal force to the Code, which should be tightened up to underline the political neutrality of the Civil Service. It should also be reviewed in relation to other public authorities, to clarify lines of Civil Service and ministerial accountability and responsibility".

The sixth report of the Committee on Standards in Public Life, under the chairmanship of the noble Lord, Lord Neill of Bladen, concluded:

"A timetable for the introduction of the Government's commitment to a Civil Service Act should be produced as soon as possible. In particular, a target date should be set for the consultation on the scope of such an Act".

Other countries with similar systems, including Australia, New Zealand, Canada, and Ireland have legislated to put their public service structures and values on a statutory footing, recognising that,

"as one of the great institutions of state, the Civil Service needs to be insulated against the vagaries and caprice of party faction, fad or prejudice".

In April 2003, the ninth report of the Committee on Standards in Public Life, chaired by Sir Nigel Wicks, recommended that:

"The Civil Service should be established in statute",

and that,

"There should be a short Act to cover the Civil Service and special advisers".

In 2000, the Wicks Committee noted that the debate surrounding the need for a Civil Service Act had,

"acquired fresh importance because of the radical reform of the Civil Service that this Government is pursuing".

There have been concerns about the increasing numbers and the intrusive role of special advisers leading to the politicisation of the Civil Service. In May 2002, my noble friend Lord Holme of Cheltenham—who is also taking part in this debate—called attention to the case for a Civil Service Act, clarifying the respective responsibilities of Ministers, political advisers and civil servants. Former Cabinet Secretaries—one of whom is taking part in this debate—and special advisers lent the collective breadth of their experience to a lively and authoritative debate.

Many noble Lords commented on the timeliness of the debate. The noble Lord, Lord Butler of Brockwell, who has expressed regret for his inability to be present today—had he been, he would have spoken supportively—said:

"Why then, when a non-political Civil Service has survived for almost 150 years on the basis of the Royal Prerogative and the Civil Service Order in Council, is legislation now needed to provide for it? In my view, the reason does not lie in the ill intentions of either this or any other government. It lies in the changing context in which government is conducted. This has introduced requirements which have become, I think, dangerous to the concept of a non-political Civil Service—[Official Report, 1/5/02; col. 698.]

The noble Baroness, Lady Prashar will enrich this debate with her authoritative contribution. I hope that she will forgive me for quoting her now. She said:

"By enshrining in statute the core values of appointment by merit after fair and open competition, and by incorporating in statute the responsibilities and powers of the Civil Service Commissioners, including the obligation to report on their work, we would place the constitutional position of the Civil Service more directly under the oversight of Parliament".—[Official Report, 1/5/02; col. 704.]

The evidence revealed during the inquiry carried out by the noble and learned Lord, Lord Hutton, about the workings of the Civil Service gave rise to widespread public concern about the current position. The annual report of the Wicks committee, published in February 2004, noted that,

"a number of the issues that were raised during Lord Hutton's inquiry were presaged, in a general way, in the recommendations made in our Ninth report . . . including: clarity, and parliamentary approval through a Civil Service Act, of the appropriate boundaries between Ministers, Special Advisers and Civil Servants; a clear statement of what Special Advisers cannot do set out in primary legislation; and the need for powers to be given to the Civil Service Commissioners to investigate, on their own initiative, concerns raised about possible breaches of the Civil Service Code".

The committee expressed its belief that:

"The Government's response represents a seriously missed opportunity to bring the necessary clarity about the proper boundaries within the executive; to ensure the right degree of security about their maintenance; and through this, to enhance public trust in the processes of government".

On 4 February, the debate on the Hutton inquiry spurred further calls for a Civil Service Act. For example, my noble friend Lord McNally said:

"The lessons from Hutton are very clear. Never again should a political appointee, and especially the Government's political propaganda chief, be so closely involved in the workings of our secret services. The role and powers given to Alastair Campbell when the Government came into power in 1997 were fraught with dangers for the political neutrality of the Civil Service and the integrity of the information services. There is an urgent need for a Civil Service Act to underpin the Northcote-Trevelyan principles of a politically neutral Civil Service promoted on merit".—[Official Report, 4/2/04; col. 778.]

I hope that it is clear from the above that the time is over-ripe to put the Civil Service on to a statutory footing so that we can have a politically neutral Civil Service, appointed on merit, without political interference or control by politically partisan special advisers.

I declare an interest as a former special adviser to Roy Jenkins at the Home Office. At that time, 30 years ago, the Civil Service was robustly impartial and politically neutral. Often, if I may say so, civil servants stood up to Roy Jenkins, junior Ministers and me—thank heavens that they did, as they prevented us making some of the crass mistakes of which I personally might otherwise have been guilty. In recent years, concerns have been expressed that there has been an erosion of the impartiality of the Civil Service, especially under the administration of the noble Baroness, Lady Thatcher, and the present Government. Some have argued that the best reform would be fully and openly to politicise the Civil Service. I do not agree with that course. I continue to believe that, under our system of government, a politically neutral, impartial Civil Service appointed on merit and exercising executive power is a constitutional necessity. It promotes rather than undermines good governance. That is why legislation really matters.

Part 2 creates a framework for the Civil Service structure in England, Wales and Scotland. Wicks recommended that the Civil Service Commissioners should continue to be responsible for ensuring that the merit principle is properly applied and that the commissioners should be granted powers and facilities to investigate, on their own initiative, and to report on the operation of the Civil Service recruitment system as it concerns the application of the principle of selection on merit. That is exactly what the Bill does.

Under Clause 6, selection to the Civil Service must be by merit on the basis of fair and open competition, except where it is otherwise expressly provided for in the Act. Clauses 7 and 8 set up the Civil Service Commission and outline its duties. Clauses 15 and 16 and Schedule 3 grant powers to the commissioners to enable them to investigate and report. Wicks recommended that a Civil Service Act should include a statutory obligation on Ministers to uphold the impartiality of the Civil Service. Clause 10 does that by making it the duty of each Minister of the Crown to uphold the integrity and impartiality of the Civil Service and to uphold the independence and impartiality of the Civil Service Commission. That is similar to the obligations included in the Constitutional Reform Bill, which we shall debate on Monday, in relation to judicial independence. It is likely to be of greater practical importance as applied to civil servants than to judges.

Clause 13 provides that the Minister for the Civil Service shall issue codes of conduct for civil servants and for special advisers to set out the constitutional framework within which they work and the values that they are expected to uphold. The draft code must be published and representations sought from the Civil Service Commission. The draft code must then be laid before both Houses of Parliament.

The important office of Commissioner for Public Appointments was established in December 1995 as a direct result of a recommendation in the first report of the Nolan committee. The commissioner, currently Dame Rennie Fritchie, is appointed by the Queen under the Public Appointments Order in Council 2002. Clause 19 puts the office of Commissioner for Public Appointments on a statutory footing.

Special advisers are currently appointed by Ministers to the Civil Service under powers conferred by the Civil Service Order in Council 1995 as amended. The number of special advisers did not vary much for 20 years from Harold Wilson's time as Prime Minister, and at the beginning of 1997 there were 38 in government. But the number in December 1999 stood at 74. The Civil Service Order in Council 1995 was amended in 1997 to give up to three special advisers, all at No. 10, executive powers over civil servants. On 9 February 2004, the noble Lord, Lord Bassam of Brighton, provided helpfully an up-to-date list of special advisers, which revealed that there are currently 73 special advisers, no fewer than 27 of whom are assigned to the Prime Minister. I believe that no special adviser should be able to exercise executive powers over civil servants, and look forward to the Minister's response on this point. The Bill goes further than the Wicks report in this respect, because Wicks accepted that the existence of two posts with executive powers within the office of the Prime Minister should be recognised in statute.

Clause 11 provides that no special adviser, as defined in Clause 5, may exercise executive powers. Each special adviser will be under a duty not only to uphold the integrity and impartiality of the Civil Service but also to act at all times with honesty and integrity. In particular, they will not have the powers to authorise any spending of government money, to be able to instruct civil servants or to have any role in the line management of civil servants.

Clause 12 requires an annual report on the appointment, role and responsibilities of special advisers. No doubt, the Bill can be improved, notably by including the provisions in the Wright committee's draft Bill removing nationality restrictions on access to the Civil Service. We left that out; it is a gap that needs to be filled. But I hope that the main principles upon which the Bill is based will find support across the House, strengthened as it is today by many noble Lords with former ministerial experience, and that the Government will either support the Bill or introduce a draft Bill of their own that is worthy of the issues that we have raised. I commend the Bill to the House.

Moved, That the Bill be now read a second time.—(Lord Lester of Herne Hill.)

Photo of Lord Sheldon Lord Sheldon Labour 11:29 am, 5th March 2004

My Lords, I congratulate the noble Lord, Lord Lester, on bringing forward this Bill. It should have been introduced by the Government. It is quite disgraceful that, year after year, there is pressure from both Houses and Bills are put forward in both Houses, but the Government have not yet taken action. That is a great omission that obviously needs to be emphasised in the light of what the noble Lord, Lord Lester, has said today. It has obviously been a time-consuming task for him. However much assistance he may have had, it has been a great burden that has fallen on him. We should recognise and value the work that he has done.

I should also like to record my appreciation for Tony Wright, the honourable Member for Cannock Chase, and the Public Administration Committee. I was chairman of the Liaison Committee while he laboured in his committee. I am fully aware of his work and dedication which made that committee one of the successes of our parliamentary process. He has shown what can be achieved within the Select Committee system.

On looking at the Civil Service, the concept of service has always been an important strength from which we have all benefited. Even in these more cynical times there are still many who believe that the opportunity to take a part in the defence of our country or to play a part in its achievements is one of the noblest of aims.

In the early post-war years that was particularly true. There were men and women who had served their country and looked to the planning of the post-war society in which they would bring their strengths to the service of their country. That idealism resulted in much of the ensuing work of recovery and restoration in our country in the post-war years.

The background to all of that was the consequence of the great Northcote-Trevelyan reforms, quite rightly referred to by the noble Lord, Lord Lester. In their momentous report, they condemned the incompetence, the nepotism and other defects as they then existed, and showed how merit could be recruited in the interests of our country.

The reforms that followed were the foundations of our administration and produced the professional non-party-political Civil Service that we have had the privilege to enjoy. Indeed, they were the greatest development of public service seen in our country. The standards set by the Civil Service spread into local government, the professions and, to some event, even into industry. That was a development which, looking back, must make us proud that it was in our country that we were able to devise a system of administration which was high-minded, ethical and actually worked, and which largely delivered what was promised. A century later it fell to the Fulton committee to put forward a number of reforms which, although substantial, did not change the ethos of the service; the important changes in the relationship with government were accomplished without too much difficulty.

The issue which has brought the questioning about the relationship between Ministers and the Civil Service is as great as anything that we have known in the past century and a half. Our particular problem is the expanding role of the special adviser. The Fulton committee recommended the use of special advisers. Page 105, paragraph 15, of the report states:

"In addition to the Permanent Secretary, there should also be in most departments a Senior Policy Adviser to assist the Minister. . . . His prime job would be to look to and prepare for the future and to ensure that present policy decisions are taken with as full a recognition as possible of likely future developments".

That was 36 years ago, and what was said is as relevant now as it was then. The Fulton committee on the Civil Service recommended the setting up of the Civil Service Department. In 1974, six months before I went to the Treasury, I took on the responsibility of the Civil Service Department. The Minister for the Civil Service was the Prime Minister. Harold Wilson had other matters to consider between the two general elections in 1974. I was made the Minister responsible for the day-to-day running of the Civil Service Department. That appointment followed from my membership of the Fulton committee, of which the noble Lord, Lord Allen of Abbeydale, was a member. The noble Lord, Lord Croham, was the Permanent Secretary and head of the Home Civil Service.

In its recommendations, the aims of the Fulton committee were that special advisers would not only have a close political relationship with the Minister but also be known for their standing and experience. So it was that in 1974, Nikki Kaldor, Tommy Balogh, Brian Abel-Smith and others brought their talents into the Civil Service. It was in the Civil Service Department that I had responsibility for approving them and agreeing their salaries. That was the kind of situation that was thought to be sensible. People with knowledge and understanding were brought into the Civil Service to help the political party to which they were attached. That was generally accepted.

In more recent times we have seen some useful appointments as well as some inexperienced people who may share the politics of their Minister, but we are unsure what else they bring to their office. We understand that apart from two individuals no special adviser can give instructions to civil servants. But that does not present the whole picture. Even apart from these two individuals, special advisers can press civil servants with the advantage that they possess of being close to the Minister and even asserting views which may not precisely match those of the Minister.

In November 2001, in evidence to the Public Administration Committee, Sir Richard Wilson, now the noble Lord, Lord Wilson, gave an account of his early experience. He said:

"I found myself at a much more junior level than I am now in a situation where special advisers were, as it were, giving me instructions and I found myself in quite difficult positions as a result of that. I think this question of how far special advisers in practice can tell or ask civil servants to do things is an issue which has existed for quite a long time as a grey area but has now become a matter of public concern and controversy".

He also pointed out that in what he calls his "junior years", he came close to being instructed by special advisers and that that was a serious matter. More recently, the Select Committee on Public Administration has taken evidence which demonstrates that special advisers have come close to taking positions at higher levels within the machinery of government. What is happening is really quite disgraceful. In our country, people who are unelected are able to offer that kind of strength to views that only they may possess. This is a serious matter, particularly given that the Government do not allow special advisers to appear before Select Committees. If they did, we would find out more about the way in which they work and carry out some of the responsibilities of which we are unaware.

If such special advisers are to hold such powers, is it not essential that the Government relax their views and allow Select Committees to discover what it is they do and how they undertake their work? In particular, I approve of the position here that no special adviser may exercise executive powers. That is an important part of the Bill, which I wholly appreciate.

It is the position of special advisers in relation to civil servants which is a major requirement of this legislation. They may be helpful to Ministers, and it is right that they should be, but they ought not to distort the production of and the detailed consideration of policy choices, which is a most important task of administrative civil servants.

In the public administration report, it is pointed out that since the general election, special advisers have consolidated senior positions in the machinery of government. The report states:

"We regret that the Government has not accepted the Committee's recommendation of a cap on the amount of money that can be voted by Parliament for special advisers".

Photo of Lord Marlesford Lord Marlesford Conservative

My Lords, perhaps I may interrupt the noble Lord. Does he not agree that there must be occasions when someone comes in as a special adviser and is then moved to an executive position. The obvious example that I can think of is Derek Rayner. He came in as a special adviser, designed and set up the Procurement Executive and became the head of it. Had he not come in as a special adviser, had the government of the day not then had the facility to make him the head of the Procurement Executive—I declare an interest as a special adviser in Whitehall at that time—I am jolly sure that the Ministry of Defence which greatly objected to the change of its old systems would not have welcomed him.

Photo of Lord Sheldon Lord Sheldon Labour

My Lords, clearly two separate tasks were being undertaken by that person. One was his role as a special adviser and the other was the subsequent appointment to which the person might go. One understands the division of responsibility, with particular requirements being accorded to deal with each role in turn.

So we need to move swiftly to cap the overall number of advisers as part of the forthcoming Civil Service Act. That formed part of the public administration report.

We have now reached the stage where the problem of special advisers needs urgently to be addressed. The notion of what is now called "spin" and what used to be known as the milder version of presentation has always been part of government. Putting a good gloss on policy has always been part of any administration. However, more recently we have seen some special advisers according to this practice a level of priority which has been in danger of moving from presentation, to spin, and even to distortion. What we have also seen is the departure of a number of information officers. That was really quite shameful. Those people undertook to present, pretty uncontroversially, the tasks in which they were engaged. They have left the service in considerable numbers, which is a serious signal. In the language of our time, they gave out information, rarely with spin although frequently with a touch of gloss. We need to reaffirm the standards of the service before they deteriorate further. If we forget the advantages that we have enjoyed of the ethos of the Civil Service, there is a danger that we shall come to regret it.

We have had the example of the United States President, Richard Nixon. The way in which the standards of that Administration were distorted right up to his departure from office is a lesson in what can happen in even such a committed democracy as the United States. We have only to examine the situation in the Washington of that time to appreciate the advantages that we have been able to enjoy.

Ever since the Northcote-Trevelyan reforms, from time to time anxious voices have been raised about the changing role of government and the Civil Service. This is another of those occasions. The Bill before us offers another opportunity to deal with those anxieties.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative 11:42 am, 5th March 2004

My Lords, it is a particular privilege and pleasure for me to follow the noble Lord, Lord Sheldon. He has very long experience of government and as a Member of the other place. He also chaired with distinction a number of important committees there, making his authority felt throughout the Civil Service. I join him in offering congratulations to the noble Lord, Lord Lester of Herne Hill, on bringing forward this Bill. I also join him in his congratulations to Tony Wright in the other place on the work of the committee which he chairs. This is an example, among others, of the value of the Select Committee system in the other place. It has proved to be a considerable improvement on the arrangements over there for bringing to account the executive of government.

To shorten matters, I should say that I agree fully with what the noble Lord, Lord Sheldon, has said, in particular with his remarks about Part 2. It will save time and enable noble Lords to listen sooner to the remarks of the noble Baroness, Lady Prashar, if I simply make that comment and do not attempt to repeat the noble Lord.

However, I have some difficulties with Parts 1 and 3. As I understand it, government are the executive given powers to carry out executive acts and make decisions. Parliament is primarily a body for legislation rather than for taking executive action. It has a duty, particularly the House of Commons, to look at what is done by the executive, and this House from the point of view of examination. It also has the duty to hold the executive to account. It does so by requiring that the executive of government needs to have the confidence of the House of Commons in order to carry out its executive actions. Therefore the correct way to consider these matters is that, generally speaking, the executive should perform executive acts such as taking decisions on appointments and the like, and the executive is then accountable to Parliament for what it has done. It is also responsible for trying to hold the majority of the House of Commons in its confidence. In my view, this arrangement has underlain the whole idea of government for a very considerable time in this country.

The proposals set out in Part 1 seek to introduce procedures restricting the right of executive government to exercise prerogative functions which hitherto it has exercised under the kind of controls that I have just described. It is not at all clear that these proposals would improve on the present position. If a treaty requires a change in the law before it can be put into effect in this country, Parliament needs to be involved in that process. Of course, that often happens. So it is not clear that the executive should require the prior authority of Parliament before it enters into or ratifies a treaty. That has been the position for some time. I see the force of the arguments both ways but, ultimately, entering into a treaty is an executive act which a government should be able to undertake.

The same is true in regard to the waging of war. The decision to wage war is, I think, the most important decision a Prime Minister has to take. There is a danger in trying to dilute the responsibility for that decision by seeking to put it to Parliament. Whatever Parliament's view is, the ultimate responsibility for taking that decision must rest with the Prime Minister.

Photo of Lord Maclennan of Rogart Lord Maclennan of Rogart Shadow Minister, Foreign & Commonwealth Affairs

My Lords, with respect to the possible dilution of the executive act, does not the noble and learned Lord acknowledge that the assent of Parliament, in particular when there is a public division of opinion about the waging of war, enormously strengthens the executive?

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, certainly. I agree that the Prime Minister would wish to take with him the opinion of Parliament. However, the point I am trying to emphasise is that, even if a majority of the House of Commons gives its agreement to go to war, the ultimate responsibility must rest with the Prime Minister. It cannot be shared with Parliament in that sense. The fact that the Prime Minister has the approval of Parliament to go ahead may be a considerable encouragement or source of support, but the ultimate responsibility is his and should remain so. That, of course, goes for both male and female Prime Ministers.

Part 3 is concerned primarily with executive actions in making appointments. I consider that laying down the procedures under which these appointments are made may be important, but I do not think it right for Parliament to have, as it were, a power of selection in the area of even these appointments. The area of selection so far as Parliament is concerned should be the selection of the executive government which enjoys its confidence.

As to Part 2—the central part of the Bill—I think that the changes that have taken place in recent years in regard to the appointment of special advisers and the width of functions they have been able to undertake, have at least contributed to the present feeling about government not being entirely divorced from party. There is a feeling that even in government sometimes it is the interests of the party rather than the interests of the nation that are being taken into account. Insofar as that feeling has prevailed in the nation, I think that these developments have certainly contributed to it.

I personally did not have a special adviser. Maybe that was lack of humility on my part—I do not know—but I certainly felt that in the office which I held it was not appropriate. My noble and learned successor, who is in his place opposite, decided to have a special adviser in the form of a very senior member of the solicitors' branch of the legal profession. Considering the responsibilities that he had, I can well see why he thought that was necessary. I do not believe that anything of that sort has contributed to the feeling that I have described.

Photo of Baroness Prashar Baroness Prashar Crossbench 11:51 am, 5th March 2004

My Lords, it is a rare privilege to follow three such distinguished speakers. I am grateful for the opportunity to contribute to the debate and congratulate the noble Lord, Lord Lester of Herne Hill, on introducing this important Private Member's Bill.

Having waited for nearly 150 years, we now have a prospect of three Bills—this one, the one introduced by the Public Administration Select Committee in the other place and the Government, too, have promised to publish a draft Bill on the Civil Service in the current Session. It is like the No. 88 bus—we wait for 150 years and then three come along in a row.

I should declare that I am the First Civil Service Commissioner. I am, however, appointed on a part-time and fixed-term basis and would have nothing to gain personally from a Bill that proposes the establishment of a Civil Service Commission with greater powers than those we currently have. The same applies to my 12 fellow commissioners. We all view our tenure as a privilege and an opportunity to act as stewards of an effective and impartial Civil Service in the public interest.

I shall confine my remarks only to those parts of the Bill which relate to the Civil Service. I strongly support the Bill insofar as it seeks to entrench in statute the key values of the Civil Service and the role of Civil Service commissioners; and to clarify the respective roles of Ministers, special or political advisers and civil servants.

I should add that I am not a recent convert to this view. My conviction that we need a Civil Service Act is based on my experience both as the First Civil Service Commissioner for the past four years and also as a part-time Civil Service commissioner during the period 1991 to 1996.

Why do I think legislation is necessary? The Civil Service is changing fast. The structural changes of the 1980s and 1990s have given way to an ambitious reform agenda which has accelerated in recent years. In a widely reported speech last week the Prime Minister set out seven key ideas for the transformation of the Civil Service. These included: a Civil Service with professional and specialist skills; a Civil Service open to the public, private and voluntary sectors and encouraging interchange among them; more rapid promotion within the Civil Service and an end to tenure for senior posts; and a Civil Service equipped to lead, with proven leadership in management and project delivery.

The Civil Service has never stood still and it will continue to change to meet new demands. In the same speech the Prime Minister said:

"The question for the Civil Service in our generation is how to sustain these values, while bringing about the radical transformation our times demand".

This is the critical question because the Wicks committee, the report of which was published in April 2003, stated that it had heard nothing in the evidence to suggest that specific aspects of the current reform of the Civil Service necessarily risked undermining the core values. However, it stated that it did hear concerns that insufficient attention was being paid to the overall effect of change.

This is a real concern. The Civil Service has, quite rightly, embarked on a programme of reform in response to changing demands, but at a time of rapid change there is a need more than ever to ensure that the core values of the Civil Service are not eroded. As departments recruit more people from outside to senior positions, it is essential not only to make sure that the Civil Service benefits from their skills, experience and different ways of doing things, but also that they understand the core values which underpin the work of the service. I believe that these values are neither incompatible nor peripheral to the process of change.

Civil servants exercise discretionary power in their everyday work in several ways: in their stewardship of public resources; at the interface with the general public; and in the context of their policy-making responsibilities. Core values such as integrity, honesty, impartiality, objectivity and appointment on merit are one of the most important checks and balances against arbitrary use of their public power. They are a vital factor in creating and maintaining confidence in government and its institutions.

So the answer to the question posed by the Prime Minister is that we need legislation to sustain these core values and an active effort to promote and revitalise them. These values are too important to be taken for granted. It is no longer appropriate that such matters are regulated by Orders in Council, which can be changed at the whim of any government. We need a Civil Service Act which will provide parliamentary protection and oversight. The importance of introducing a Civil Service Bill at a time of rapid change should be a legislative priority because nothing is more important in the world of politics than the rules of the game and the rights of citizens.

As the noble Lord, Lord Lester, said, this is not a novel proposal—calls for a Civil Service Act have been made since 1860. Those opposed to legislation have argued that such a Bill would be difficult to draft. As we have heard, Dr Tony Wright and the Public Administration Select Committee and the noble Lord, Lord Lester, have proved them wrong. Other objections are that declaratory legislation is not helpful and might lead to inflexibility affecting the management of the service. These objections are no longer convincing because in November 1994 the Treasury and Civil Service Committee refuted these arguments rather well and I should like to quote it in full. The committee said:

"We are not convinced of the case for a wide-ranging Civil Service Act as a mechanism for either furthering or delimiting reforms of the Civil Service. However, we do believe there would be considerable value in a much narrower statute, principally designed to provide statutory backing for the new mechanisms for maintaining the essential values of the Civil Service. We agree that it is better to have a culture with a strong sense of commitment to essential values rather than to have an Act without such a culture".

More importantly, it stated:

"we believe it is better still to have both. The passage of such an Act would reflect the interests of Parliament, as the representative of the electorate, in the preservation of the values of the Civil Service; it would set the terms of the custodial responsibility of the Government of the day for the Civil Service".

I entirely agree that the scope of any Bill dealing with the Civil Service should not be too prescriptive or drafted in a way which would inhibit its evolution, organisational development or reform. But I do strongly believe that by placing the constitutional position of the Civil Service, as distinct from its daily management, under the oversight of Parliament; by providing for the respective roles and responsibilities of Ministers, political advisers and civil servants to be clearly defined within the overall constitutional framework and subject to independent monitoring; and by placing the Civil Service more directly under the oversight of Parliament, we will provide an important reassurance about the continued impartiality of the Civil Service and the values that sustain it at a time of rapid change.

I particularly welcome five aspects of the Bill. First, I believe it is important that the legislation reinforces the status of the Civil Service Commissioners as an independent body of people concerned with the maintenance of an effective and impartial Civil Service. In part, this is already provided by our appointment by the Crown under the Royal prerogative. The appointment of the First Civil Service Commissioner, by agreement with the Opposition parties, would provide additional reassurance about our independence and political impartiality. I am glad to see this provision in the Bill.

Secondly, any Bill must clearly set out the role of the commissioners in relation to ensuring that the key recruitment principle of selection on merit on the basis of fair and open competition is applied to the generality of appointments to the Civil Service. It should also enable the commissioners to allow appointments to be made outside of this principle in certain limited circumstances, as is currently the case.

However, I hope that the legislation does not prescribe how the commissioners would undertake their functions in detail. As commissioners, we seek to be firm on principle but flexible in practice. The flexibility inherent in a recruitment code means that we can respond quickly to changing situations and circumstances. For example, in relation to the principle of openness, we have recently provided additional advice on the use of the Internet for the advertising of posts. Generally, we want to encourage innovation and experiment within the framework set by the recruitment code. I am pleased that the Bill supports this approach.

Thirdly, the way in which the Civil Service code is promoted by departments in inadequate. One problem is the lack of awareness of the Civil Service code among new recruits and even some long-serving recruits. The code is neither well known nor promoted. Departments have much to do to turn the code into a living document rather than something only to be consulted at the time of an appeal. Against the background of change and greater movement of staff, it is critical that the code is promoted and that new recruits understand the constitutional framework within which they work and the values they are expected to uphold. I believe there is an important role here for the commissioners in monitoring that the departments positively promote the code.

Fourthly, I am concerned about the almost impossible pressure we put on civil servants if they wish to pursue a complaint under the Civil Service code. The noble Lord, Lord Wilson, who I am pleased to see will be speaking later, described it as the nuclear option. At present, civil servants who feel they are being asked to breach the Civil Service code must first follow their departmental processes before coming to the commissioners. The current process is quite daunting for individual civil servants. Faced with such a process, it is not surprising that some civil servants either keep silent or, in extreme cases, resort to leaking. I therefore support the part of the Bill giving Civil Service Commissioners the power to initiate inquiries rather than having to await an appeal from an individual civil servant under the code.

Finally, I believe it is consistent with a statutory framework which provides for parliamentary oversight of the core Civil Service standards for the commissioners to report annually to Parliament on their work. It is right that we account for our work and be examined on it. I am glad to see that provision in the Bill.

The Civil Service is a public asset; it exists in the public interest and there is therefore a public interest in the maintenance of a Civil Service which transcends the interests of any one administration. So we must avoid any legislation in this area becoming a party political issue. I hope that this debate will lead to a Joint Committee of both Houses being established to take forward consideration of the most appropriate legislation to reinforce the core values of the Civil Service. I very much hope that the Government will agree to this proposal.

To conclude, proper conduct has always been a prerequisite to good governance. Because of the necessary changes occurring in the way in which the Civil Service operates, there is a need to give much more attention to the ethical standards underpinning the way in which civil servants carry out their work, and clarifying and defining the respective roles and responsibilities of Ministers, political advisers and civil servants. The success of current management reforms and overall confidence in government will, in my view, depend on it. I very much hope that we will see legislation on our statute books sooner rather than later.

Photo of Lord McNally Lord McNally Shadow Minister (Broadcasting), Culture, Media & Sport, Deputy Leader, House of Lords 12:05 pm, 5th March 2004

My Lords, the stellar quality of the speakers in this debate is a tribute not only to my noble friend Lord Lester but to the importance of the issue. I should like to go beyond the normal courtesies in paying tribute to my noble friend. He has made a massive contribution over the past 30 years to good governance and good law in this country. He has never been content simply to be a commentator or a critic, but he has been a consistent source of practical solutions. Probably the best compliment ever made by one politician about another was when Mrs Thatcher said of Lord Young of Graffham, "Others bring me problems. David brings me solutions". I suggest that my noble friend Lord Lester belongs in that pantheon of problem-solvers, and I congratulate him on the Bill.

I am very pleased also to follow the noble Lord, Lord Sheldon. I always keep in mind his dictum that the two great inheritances we have brought from the 20th century to the 21st are the BBC and our Civil Service. I believe that this House will have an important role in defending the future of both.

I saw the Civil Service first hand as a special adviser between 1974 and 1979. I revisited the institution as a Member of this House and as a member of the Select Committee, under the chairmanship of noble and learned Lord, Lord Slynn, which looked into whether the reforms of the 1980s and 1990s had damaged and weakened the underlying ethos of the Civil Service. As has been mentioned, I also served before the 1997 election on the Labour and Liberal Democrat constitutional committee known as the Cook-Maclennan committee.

My impression, gained as a special adviser and confirmed by my work under the noble and learned Lord, Lord Slynn, was then and is now that we have a Civil Service which is politically neutral and still motivated by a considerable ethos of public service. Both features came under attack in the 1980s. We all remember Mrs Thatcher's question, "Is he one of us?" . It was put more delicately by a House of Commons research paper published in May 2003, which said:

"it is argued that Conservative governments, and in particular Margaret Thatcher as Prime Minister, benefited from the fortuitous retirement of a large number of permanent and deputy secretaries . . . between 1979 and 1985 and by their replacement by 'sympathetic' officials".

I also believe that in the Thatcher years, the Civil Service was undermined to a certain extent by the continuing long period of service to Mrs Thatcher by Charles Powell—now the noble Lord, Lord Powell—and Sir Bernard Ingham. I do not in any way suggest that they carried out their duties during that period with anything other than due impartiality as civil servants, but I think it was wrong to allow a Prime Minister to, as it were, adopt mainstream civil servants and keep them in post for a decade or more.

The question before us, however, is: is a politically neutral Civil Service, promoted on merit, fit for purpose in the 21st century? It is, as has already been indicated, not the only solution. Sir John Hoskyns, Mrs Thatcher's think tank head, argued in the early 1980s:

"If a country's problems require radical remedies, you need a radical government. But how can you have a radical government without radically-minded officials?".

Sir John advocated then a "spoils" system,

"to replace a large number of senior civil servants with politically appointed officials on contract, at proper market rates, so that experienced, top-quality people would be available".

That was the other side of the argument. It is interesting that now, 20 years later, no major politician—as far as I know—nor political party has espoused that idea of politicising our Civil Service.

However, there is also no doubt that Mr Blair has, for a number of reasons, "played footsie" with the idea while in office. It has already been pointed out that the hybrid role of Jonathan Powell and Alastair Campbell when the Government came to office is one example of that; another is the massive expansion of the role of the No. 10 policy unit. I would challenge the Government to reconvene the committee of the noble and learned Lord, Lord Slynn, to look again at how the ethos of the Civil Service has survived seven years of Labour government as it looked at how it had survived 18 years of Conservative government.

The Civil Service ethos is not entirely dead. At a recent function, I met a senior Treasury official who had resigned from a lucrative, high-flying job in the City to work in the Treasury because he felt he would find there the challenge and stimulus that he wanted from his employment.

Some changes are inevitable. Sir Humphrey at 60 is no longer likely to retire with his K and his Oxbridge mastership to prune his Surrey roses, but to head for the City boardroom or a lucrative consultancy, often with a company that has been dealing with his department. The pressures do not work in only one way. Moreover, out-sourcing, short-term contracts and other reforms have had their impact. We have also seen some beneficial reforms. The Major government have not yet been given enough credit for their attempts to introduce new ethics codes and improvements into the Civil Service, including the Nolan principles.

We need a Civil Service that is flexible enough for modern needs, but protected in its best traditions, especially in its public service ethos based on the Northcote-Trevelyan principles of neutrality and merit. The Bill meets those needs. It is frankly a disgrace that nearly eight years after the Cook-Maclennan report and seven years after the Government came to office, they still dither and prevaricate.

While declaring that I was a special adviser, I shall offer a brief defence of special advisers. The noble Lord, Lord Sheldon, painted a rather lurid picture of their rampaging through Whitehall and not being responsible to Parliament. When I was a special adviser, I was in no doubt that I was responsible to Jim Callaghan, and Jim Callaghan was in no doubt that he was responsible to Parliament. That is the route of accountability that special advisers should take. If anybody knows of a special adviser who is behaving badly, let him table a Parliamentary Question and have the Minister responsible for his appointment defend it at the Dispatch Box. That will lick him into shape.

Special advisers are not a new concept. When I was in No. 10, a historian came to see me. He said that he had traced special advisers, in one way or another, at least back to the Lloyd-George era. Those cuckoos have always been in the Whitehall nest. Of course, many special advisers—now hundreds of them—have benefited, as I certainly did, from that experience of working in government at the sharp end. They have gone on to head a major company and an economic think-tank, to become a governor of the BBC and a Member of the House of Lords—and that is just Sarah Hogg. However, New Labour has got some things wrong. There is no need for the kind of codification described in the Bill.

I shall make one final point on the media and the Government's information role. As the noble Lord, Lord Lester, pointed out, the role, profile and powers given to Alastair Campbell in 1997 were fundamental mistakes and we paid for them as regards Hutton. Part of the reason for that, as I said in our debate on the Hutton report, was down to Labour's bruising in the 1992 general election and its feeling that it had been outmanoeuvred and outflanked in its media operations. It learnt the most ruthless of rapid rebuttal from the American experience. That aggressive handling of the media was at the root of the spat with the BBC and we saw in it our debate yesterday. When the Newton report was published, any sensible government would have thought about it and responded in due course, but the lesson of rapid rebuttal is that one has to be on the news within 24 hours to rubbish it. We are then left with the pieces to pick up.

The Government now have a blueprint for reform in the Phillis report and it is important that we follow through with that. Although Alastair Campbell, in his political role, was replaced within 24 hours, we still await the senior civil servant who, according the advertisement,

"will need to bring about revolutionary changes in the way the government communicates and engages with its customers".

There is still no sign of that superman or woman. Indeed, in the Financial Times of 5 January, Sue Cameron wrote that part of the problem is that permanent secretaries are "out of their prams" at the idea of a supremo who will,

"achieve an unprecedented level of co-ordination across Whitehall".

Miss Cameron believes that:

"What the Blair government needs is better policy advice, not a permanent secretary for propaganda".

In one way, she is right. After seven years, the Government should lose the chip on their shoulder and take a more measured view of matters. On the other side of the coin, we want civil servants who can say "No, Minister" as well as "Yes, Minister". I agree with the noble Baroness, Lady Prashar, who said that that can best be underpinned by granting better protection to those who do say "no".

On the issue of government information, we need clear guidelines that stop Ministers dipping into the public purse for party political propaganda purposes. This House can pat itself on the back that it shamed the Government into stopping that ludicrous annual report, which was simply a Labour Party propaganda document. Government information should be separated from government spin.

The noble Lord, Lord Lester, has shown the way, but the auguries are not good for a positive and radical reply from the Government. The sight of the Minister, the noble Lord Bassam of Brighton, on the Front Bench instead of the Secretary of State for Constitutional Affairs, who sits in this House, reminds us that we have become affectionately accustomed to the dead bat, indeed the dead hand, of Bassam. Therefore, I do not hold out high hopes for a radical declaration today.

However, the building blocks for reform are in place: the work of the UCL constitutional unit; the work of the House of Commons Select Committee under Tony Wright; the work of Sir Nigel Wicks and his predecessors; the work of the noble Lord, Lord Wilson, when he was Cabinet Secretary—I look forward to his speech; and the Phillis report itself. Not least, a building block has been provided by the noble Lord, Lord Lester, who has done the country a genuine public service by bringing this Bill forward today.

Photo of Lord Wakeham Lord Wakeham Conservative 12:19 pm, 5th March 2004

My Lords, it is always a pleasure to follow the noble Lord, Lord McNally. For most of my time in this House, it has been over questions to do with the press. He got into that area towards the end of his speech, I did not recognise his analysis of events between 1979 and 1983 under the government of my noble friend Lady Thatcher. Even if he were remotely right in what he said, it would have been a pretty severe criticism of the Civil Service rather than of Ministers for it to have been true. However, this is not the time and moment at which to debate those matters.

I join in the congratulations that all noble Lords have given to the noble Lord, Lord Lester, on bringing forward this Bill and on getting an interesting and distinguished group of noble Lords to speak in this debate. I am very honoured to be among them. The Bill raises issues of great constitutional significance. I agree with the noble Lord on the importance of the issues that he raises and agree that things are not right at the moment. However, I part company with him to some extent over the solutions that he proposes and whether they represent in all cases the best way forward.

I had the honour to be the chairman of the Royal Commission on the reform of the House of Lords, when we considered very carefully some of the issues that appear in the noble Lord's Bill. Incidentally, I congratulate him on the preparation of the Bill; even for a distinguished lawyer, it must have been an enormous amount of work. Many years ago, I remember drafting an extremely simple Bill, when I was first in the House of Commons. I swore that I would never do that again if I could find a respectable way in which to avoid it. Drafting a Bill involves a tremendous amount of work, and we are all grateful to the noble Lord for that.

I turn to the substance of the Bill, and the question of public appointments, where the noble Lord would like there to be a system of parliamentary approval for the more senior appointments. Scrutinising public appointments is a relatively common function of many overseas parliaments, especially that of the United States, but it has never been so here. However, the process of public appointments is considerably more open and transparent than it was following the establishment of the Nolan principles. I support those arrangements and consider them pretty effective, but the system is still developing. I agree that Parliament should continue to watch over that area in the years to come.

However, I see considerable disadvantages in public appointments being subject to confirmatory hearings. There would be a risk that good candidates would not put their names forward for fear of intrusive and partisan questioning. Recent experience on some Select Committees does not give me much comfort on that score. If the House of Lords did it, so would the House of Commons, and that would be too much. I am also very doubtful whether any parliamentary committee should seek to substitute its judgment in the place of the Minister's for an appointment that he makes, as the Minister is ultimately responsible for carrying out the policy.

The noble Lord also wants greater parliamentary oversight over the use of the Royal prerogative for making international treaties. Those powers are at present vested in the Crown, which means the Government. They enable governments to enter into treaties without any consultation of Parliament. I am sympathetic towards some of the noble Lord's concerns in these matters. Of course, a treaty does not itself change our domestic law and, until it is enacted in our Parliament, it can have no domestic effect. We in the Royal Commission recognised that the present arrangements are far from ideal. On the other hand, settling treaty negotiations inevitably requires Ministers to have a degree of flexibility over some issues, which cannot possibly be set out in advance. I—and the Royal Commission—would have liked changes in that area. Although I am reluctant to enhance Parliament's powers over those of the executive in that respect, a great deal can be done without legislation.

In 1999, the noble Lord, Lord Lester, recommended that the House might consider setting up a Select Committee to scrutinise international treaties. That idea has a lot to commend it. My understanding is that successive governments have invited consideration of international treaties under the Ponsonby rule. More could be done in that area, particularly to see whether treaties raise issues that merit debate or reconsideration before they are ratified. All that is the sort of thing that the House of Lords could do with advantage.

I have considerably more sympathy with the noble Lord's proposals for putting on a statutory basis the role of the Civil Service. I have been reluctant to go down that road, but recent events have convinced me that some Act is required. A fully independent Civil Service, free from political pressures, is a linchpin in the conduct of public affairs. Whether the proposals in the Bill are exactly right, I do not consider myself expert enough to know, but I have a considerable amount of sympathy with what the noble Lord proposes.

I wish to summarise my views on a more general point. Many of the noble Lord's proposals to control the executive are, in my view, a very serious indictment of Parliament, whose job it is to control the executive. The failure to do that effectively is a very serious matter. If Parliament is prepared to exert itself, it has immense powers; any time when it feels strongly enough about anything, it can bring the Government to book. A handful of Members in the other place can bring the House to a standstill in 20 minutes. I certainly do not recommend that, but much can be done short of really tough action. As a former Chief Whip and Leader of both Houses, and a fully paid-up member of the usual channels, I did all that I could to discourage such behaviour. The power of Parliament is immense, however. Our democracy requires that it is used a bit more frequently and a bit more strongly than it has been in recent years.

I welcome the noble Lord's Bill. He has done us all a great service in bringing it forward. Considerable parts of it I approve of while others I am less happy about, but he has certainly indicated serious problems that need tackling. It is about time that they were tackled.

Photo of Lord Holme of Cheltenham Lord Holme of Cheltenham Liberal Democrat 12:28 pm, 5th March 2004

My Lords, it is a great pleasure to follow the noble Lord, Lord Wakeham. May I say how strongly I agree with him that the solution for Parliament in many of these issues lies in our own hands, and that we should find a way in which to act more effectively as a check on the executive? May I also, like other noble Lords, pay tribute to my noble friend Lord Lester? This is an extremely ambitious but very elegantly constructed Bill and, if it is passed, it would be an important plank in our constitutional arrangements. It deserves very serious consideration by the House.

I shall concentrate on Part 2, as the noble Lord, Lord Sheldon, and others, have done. As he mentioned, in May 2002, through good fortune and the ballot, I was able to introduce a debate on the need for a Civil Service Act, which had many distinguished contributors, some of whom are speaking again today. On that occasion, it was particularly apparent that two former Cabinet Secretaries, in the shape of the noble Lords, Lord Butler and Lord Armstrong of Ilminster, both declared themselves converts to a Civil Service Act.

It is interesting that those who have led the Civil Service find themselves, in retirement, believing that the arrangements need clarifying. Sir Richard Wilson, as he then was—the noble Lord, Lord Wilson, as he is now—from whom we shall hear later, in his farewell speech when he left his job as Cabinet Secretary anticipated retirement by saying that he saw a clear need for a Civil Service Act. In that sense he was ahead of his erstwhile colleagues. It is noteworthy that very shortly thereafter we were promised an issues paper from the Government. That was in March 2002, and we are now two years on. We have had no issues paper or the consultation that we were promised by the Government and, although I gather that Douglas Alexander MP in another place has promised a draft Bill in this Session, we still have not seen a Bill for the House to consider. So we have no issues paper, no consultation and, so far, no Bill to consider.

I wonder whether this is because the debate in May 2002 was summed up in rather sunny and reassuring terms by the noble Lord, Lord Macdonald of Tradeston, who was in his place earlier and I regret is no longer here. He said that there was no pressure because there was no crisis. In one sense, that is right. There is no immediate crisis but any rational analyst would say that since then the problems that we were discussing have been apparent and that in some ways they have been exacerbated.

At the heart of a lot of the concerns expressed by noble Lords is the relationship between civil servants and advisers. I am not phobic about the number of advisers. I think that quotas is not the right way to go. The way in which special advisers do their jobs in relation to civil servants is far more important.

I particularly commend to your Lordships Appendix 13 to the Hutton inquiry, which is very illuminating on this issue. This is the notorious e-mail appendix, which requires close textual analysis by anyone interested in the way in which British government have operated in recent years. It is extremely illuminating. So illuminating is it that it makes the Book of Kells look positively understated by comparison. Let us take page 662, where a Felicity Hatfield is communicating "on behalf of" Alastair Campbell—I stress that this involves not Alastair Campbell himself but Felicity Hatfield on his behalf—directly with John Scarlett. She wrote in an e-mail:

"I asked someone in my office, whose judgement I trust, who has nothing to do with this area, to read the dossier 'cold', as it were, and give me impressions, which I want to pass on.

"Overall, she"— that is, this third party who is no expert—

"found it convincing. CW/BW, in particular".

She went on:

"'By the time I got to human rights, I was in no doubt he has to be dealt with'. Indeed, she felt she could have read a lot more on human rights.

"However, she found the nuclear section confus[ing] and unconvincing. 'It left me thinking there's nothing much to worry about'".

These are the reported views of the third party—this friend of Felicity Hatfield who is a friend of Alastair Campbell. The e-mail continues:

"She felt the whole section lacked the clarity of the rest of the document. 'It needs a section that sets out what you need to make a nuclear weapon, set alongside to what he has already'. She also felt it could benefit from an explanation of sanctions, how they work, what they do".

After a lot of rather more legitimate criticisms—spelling mistakes of "Qusay", "Edinburgh" and so on—Felicity Hatfield says:

"Finally she felt that the conclusion box on CW/BW should include a list of agents in possession and production. I agree with that".

This is a communication from Felicity Hatfield on behalf of Alastair Campbell to John Scarlett, the head of the JIC. Anybody who reads this carefully will not only have been slightly surprised by the conclusions of the noble and learned Lord, Lord Hutton, but must think that there needs to be some proper adjustment of the relationship between advisers, and their friends, and those who are in positions of executive responsibility for weighty matters. In considering the Bill of the noble Lord, Lord Lester, we should address ourselves to the issue of the relationship between advisers and executive members of the Civil Service.

Sir Andrew Turnbull appeared yesterday before the PAC. I was delighted to see that he said:

"One of the things I am sure will come out of the Butler review"—

I admire his certainty and hope he is right—

"is that if you accept the premise that you want to inform the public to the greatest extent possible, how can you do this in a way which makes it clear what is intelligence and what is the view of Ministers".

I was very reassured to hear that from the Cabinet Secretary and I hope that his prediction of what the Butler inquiry will do is right because Parliament is the apex of accountability—this bears on something the noble Lord, Lord Wakeham, said. This was the view of the Newton commission on behalf of the Hansard Society, of which I have the honour to be chairman. If Parliament is to be the apex of accountability then, alongside a Minister's normal responsibility to Parliament for the operation of his department, we need clear accountability for the Civil Service as a whole for the way it carries out its functions in compliance with various codes of conduct. As the noble Baroness, Lady Prashar, said, that should be conducted through the Civil Service Commission.

We have seen wonderful constitutional improvements at the initiative of this Government. I think I should pay tribute to them from these Benches. It has been a period of great constitutional reform. But I hope that they will not mind me saying that there has been a slightly Jekyll and Hyde approach. Alongside the great achievements of the Human Rights Act and devolution for Scotland and Wales we have seen the way that certain great British institutions operate when put under considerable pressure; I put it no higher than that. We have seen the ethos of Cabinet government, the judiciary and the BBC challenged. We have seen their authority challenged in many ways and it would be good to know that the Government have learnt the error of their ways before we have to put the Civil Service, one of the great decorations of the British system, into that same threatened category.

The proof is that the Government finally do something about a Civil Service Act. I hope that they will adopt my noble friend's admirable Bill. If they do not, will they please produce a Bill of their own very quickly? When the Minister replies perhaps he will be kind enough to tell us when we shall see the Bill—the actual date on which he anticipates that we shall have it before us. One way or another, we need to put the Civil Service into a rational statutory framework where people know what their spheres of responsibility are, and where they can get on with their jobs in the way that has always been a decoration to the British system of government.

Photo of Lord Maclennan of Rogart Lord Maclennan of Rogart Shadow Minister, Foreign & Commonwealth Affairs 12:38 pm, 5th March 2004

My Lords, I am pleased to have the honour of following my noble friend Lord Holme and in particular to sustain his underlying message that there is a degree of urgency about confronting these issues that has not been reflected in the seven years of this administration.

I ought to begin by declaring an interest as a member of the Prime Minister's Advisory Committee on Business Appointments, which looks at Civil Service issues. I should also make it plain that anything I may say about that is entirely a reflection of my own views and not those of the committee.

In approaching this debate, I reflected at some length on why there has been such inaction on the part of the Government in response to the reports that have been coming forth for many years, going right back to the most important report, to which the noble Baroness, Lady Prashar, referred—that of the Treasury Committee in 1994.

When the Labour Party entered into an agreement with my party prior to the 1997 general election, to which my noble friend Lord Lester referred, I had assumed that in government it would seek to give legal force to the code, which should be tightened up, to underline the political neutrality of the Civil Service and to clarify lines of Civil Service and ministerial responsibility; and that it meant it. It is frankly astonishing that nothing has been done. It was referred to by the noble Lord, Lord Sheldon, as a disgrace. However, I think that we are obliged to ask why there has been this delay.

The evidence is not clear. As my noble friend Lord Holme said, the noble Lord, Lord Macdonald of Tradeston, spoke of there being no crisis to precipitate a change of the kind that is so widely advocated by those who have considered these issues. However, I beg to disagree with the view that there is no crisis. There is a crisis of confidence in the business of government. It is a crisis that affects not only the view of the public about Ministers; it is one which also affects the public's view about the Civil Service.

It may not be a crisis in the sense of the crisis that faced the former Prime Minister, in the autumn of 1978, when he returned from the Caribbean and asked, "What crisis?" But it is a crisis none the less, to which Ministers have repeatedly referred as a withdrawal of support, at elections, from the democratic process; as a commitment of the public to pressure groups rather than politics; and as a crisis which erupts from time to time in different places, which led to the Hutton report and the Phillis report. How many more manifestations of this difficulty and problem of loss of public sympathy and support do the Government require before seeking to address these issues?

It seems that we have to approach this with a sense of history and a recognition that the conventional, classical view of the relationship of the Civil Service to our constitution is one which will no longer be sustainable. Perhaps the striking definition of that was given as long ago as 1985 in the famous Armstrong memorandum in which he said:

"The Civil Service as such has no constitutional personality or responsibility separate from the duly constituted Government of the day".

That seemed even then to be a somewhat shocking view, but it is not a sustainable view now. Parliament is at the centre of our constitution. Parliamentary supremacy is at the centre of our constitution, and the Civil Service must be seen as relating not solely to the Crown or the executive but also in its relationship to Parliament. It requires that that relationship should involve at least a duty—an explicit duty—to tell the truth to Parliament.

I take issue with the noble and learned Lord, Lord Mackay of Clashfern, in seeking to draw the sharp distinction that he did between the role of the executive in our constitution and the role of Parliament. The role of the executive can be effectively discharged only to the extent that it is supported and sustained by Parliament. It is not a matter in which the executive can pick and choose the occasions on which they seek, as he put it, the advice of Parliament about an issue of war and peace. The reality—and it is a reality which I think the present Prime Minister recognised in going to war in Iraq—is that Parliament's support is essential if the armed services are to be committed to a major conflict in which life is threatened.

To revert to the main thrust of my argument, civil servants must, it seems to me, be firmly embedded in their parliamentary accountability in relation to a declaratory Act that does not prevent them from operating flexibly and adaptably in the public interest, but make quite clear where their duties lie.

I return briefly to the issue of the delay. I think it is interesting that, on 24 February, we had from the Prime Minister a speech to which the noble Baroness, the First Civil Service Commissioner, referred. I do not think it has been given anything like the publicity that she suggested in her own contribution, which I greatly respected and admired. I think that that speech reveals the tension that exists at the highest level of government between the goals of the Prime Minister for the Civil Service and the objectives that we have been discussing today of securing the accountability and continuing neutrality—the Northcote-Trevelyan principles—in the modern world.

The speech was predominantly about effectiveness. It was predominantly about how to make the delivery of the Civil Service's goals more achievable. It was not about accountability. It was not about responsiveness, save indirectly. If I may, I shall cite a couple of examples of the thinking that lies behind this. The Prime Minister said, and I agree:

"The calibre of the individuals within the Service is enormously high; in many respects every bit as good as their private sector counterparts".

I thought that that was a curious way to put it, for it reveals his instinctive belief that it is the private sector—the private sector values and private sector ethos—which should inform the Civil Service. He continues: "So why does it"—the Civil Service—"need radical reform?". He says:

"The world has changed and the Civil Service must change with it. The purpose of change: not to alter its ethos and values but, on the contrary, to protect them by making them work in a way more relevant to the modern age".

That does not actually sound like the preservation and the advancement of the Northcote-Trevelyan principles.

Even less like Northcote-Trevelyan is the statement:

"The principal challenge is to shift focus from policy advice to delivery . . . It means working naturally with partners outside of Government. It's not that many individual civil servants aren't capable of this. It is that doing it requires a change of operation and of culture that goes to the core of the Civil Service".

It seems quite clear that the Prime Minister is, despite his disclaimer, seeking to alter the ethos and values of the Civil Service, and by a process of indirection. If such a change is to go ahead, then it must be clearly defined and limited. I am not at all opposed to the Prime Minister's goal of focusing more on delivery, but we need to look at the fallout consequences of that.

In a later passage, the Prime Minister said:

"In future the key roles in finance, IT and human resources will be filled by people with a demonstrable professional track record in tackling major organisational change, whether inside or outside the Service".

It is quite clear that there is a deliberate blurring of the tests of Civil Service capability. That has consequences which we ought to recognise.

These matters need to be on the record because to my mind they explain clearly what is holding up the reforms that so many of us seek. The Prime Minister continues:

"We intend to continue to recruit extensively from outside the Civil Service to senior posts, including at the highest levels. We also need to examine the business rules to make it easier for civil servants to move into the private sector and back again".

How are we to respond to that? Codes govern the consideration of these matters and the appropriateness of the moves backwards and forwards between the private and the public sectors. Are these codes adequate to sustain proper scrutiny of the appropriateness of such moves and, indeed, to sustain the belief in the integrity of the Civil Service—a point that was spelt out in the parallel paper published on the same day by the Cabinet Office? That paper drew attention to the values of the Civil Service including the belief that the incorruptibility of the Civil Service means that public policy and individual decisions made by civil servants are not influenced by considerations of personal gain either while they are in the service or in the form of an outside appointment as a reward after they have left. That is a core value that has to be preserved but it must be recognised that it comes under much greater stress as a result of this encouragement of trafficking between the private and the public sectors.

I hope that the Government will not delay further in bringing forward their proposals. Seven years is substantially too long a period. As Mr Kenneth Clarke said in another place in January, procrastination can amount to deception. Some of us are beginning to wonder why the Government are not even prepared to bring forward a draft Bill for consideration as it will clearly be some time before either House is in a position to enact its provisions.

Photo of Lord Wilson of Dinton Lord Wilson of Dinton Crossbench 12:54 pm, 5th March 2004

My Lords, the noble Lord, Lord Lester, probably feels that he is now festooned with praise but I am afraid that I shall add my own warm tribute to his work in bringing forward this Bill. It is a very important subject and his triggering this debate today is an act of true public service.

I should also like to add my praise to the praise that has already been given to Dr Wright for the work of his Select Committee in this field which was very important. I am impressed by and grateful for the speeches that we have already heard today. They show great understanding and wisdom regarding the Civil Service. The service is lucky to have that kind of supportive and intelligent debate.

I hope that the noble Lord will forgive me if I do not follow him on Parts 1 and 3 of the Bill. I have to admit that that is partly because I do not fully understand all the implications. I am also tempted to say that there are so many proposals for major constitutional change bubbling away at the moment to uncertain effect that I am not sure one should be putting more of that kind in the pot, except as regards a Civil Service Bill. I strongly support the principles underlying Part 2 of the Bill. If I may say so, I made that clear while I was still head of the Civil Service not just in the speech that I made towards the end of my time there but also before that. I have come round to that view which I shall explain in a minute.

We still have one of the finest civil services in the world. I am partisan but I would argue that we have the finest. It is highly regarded by other countries. There is a regular stream of visitors from other countries who come to see how the Civil Service operates and to learn from us. I was pleased to note that my successor, Sir Andrew Turnbull, in his report last week—that report has been mentioned—quoted impressive statistics from the World Bank and the OECD on the performance of our Civil Service compared with that of other countries, showing us in the top position for "government effectiveness" in 2002. He was right to praise the service where praise was due. He was also right to remind the service of the need for continuous improvement in its performance. His proposals carry forward reforms of the service that it has been developing for many years. I was interested to note in what he said some echoes of the report of the Fulton committee of which the noble Lord, Lord Sheldon, was a very distinguished member in the 1960s.

I was interested to hear what the noble Lord, Lord Maclennan, said about the Prime Minister's speech. I do not have time to comment on what he said but it is worth noting that the Prime Minister paid a welcome tribute to the Northcote-Trevelyan reforms—something to which we can all give a ringing endorsement. He made clear his ambitions for public services. That is a proper thing for a Prime Minister to want to do. The noble Lord, Lord Maclennan, raised the question of movement backwards and forwards between the Civil Service and the business sector. If the Minister can add anything further to that, one would be interested to hear it.

The Prime Minister also said that the Civil Service must not act as a shock absorber to maintain the status quo. Of course, the basic point is right although I question the metaphor. Without wishing to go too deeply into motor mechanics, I do not think that shock absorbers hold things back. They provide the passenger with a smooth ride over bumps while travelling at speed. I should have thought that most governments would like that.

The Civil Service has never been frightened of change. There has been change, great change, over the years. I can only give one example in this short speech but between the late 1970s and 1997, the number of civil servants was reduced by nearly 40 per cent, from nearly three-quarters of a million to below half a million. That was done quietly and without fuss. No cuts now proposed compare with that kind of change. The senior ranks of the Civil Service were cut by more than 20 per cent in just two years between 1995 and 1997. The service has shown that when it is required by the democratically elected government to respond to calls for change, it will do that.

The secret of successful reform of any great public institution or service is to base it on an intelligent understanding of that institution and its values, not treating them as some Dickensian irrelevance; to build on its strengths; to establish trust; and to respect the conventions within which the institution works. That is as much true of the Civil Service as it is, say, of this House or the judiciary.

The relationship of each government towards the Civil Service is one of stewardship for which each government is accountable, and must be accountable, to Parliament, as was described earlier. Each government are under an obligation to respect those features of the service which must not change—selection on merit, integrity, political impartiality, giving its best advice, and a commitment to public service. Each government are under an obligation not to use the resources of the state for party-political purposes. Each government are under an obligation to leave the Civil Service in a condition which will serve future governments equally well.

In return, the obligation on the service is to serve the government of the day to the best of its ability, to support them in formulating their policies and to implement them excellently and energetically. That is the deal. It is against that background that I see a Civil Service Bill on the lines before us today, or of the kind proposed by the Public Administration Committee—I shall refer to it as the Select Committee—not as a means of protecting vested interests or stalling reform, but as an essential component of any continuing reform programme.

I have not always been in favour of a Bill. My reasons for thinking that it is now needed are very similar to those quoted earlier from the noble Lord, Lord Butler. There is a wide perception that the Civil Service has become politicised. I regret that perception very much. In some ways, it is confusing, because the term is unclear and means different things to different people. Whether one believes it or not, it is a perception which has now to be addressed. At a time of rapid change, Parliament and the public are entitled to be reassured that those characteristics of the service which should remain unchanged indeed remain unchanged.

The legislation required to do that is not earthshaking, nor really very difficult. The Committee on Standards in Public Life, under the chairmanship of Sir Nigel Wicks, has prepared the ground with thoroughness, lucidity and understanding. The Select Committee has done sterling work in consulting relevant interests and in preparing a short Bill which commands widespread support. The noble Lord has put a great deal of wisdom and effort into drafting a parallel Bill.

The legislation should put the role of the Civil Service Commissioners on to a statutory basis, as Northcote and Trevelyan recommended 150 years ago. Surely 150 years is enough time in which to consult and introduce a Bill. The commissioners are the bedrock of the Civil Service's constitutional position and the guarantee of its commitment to fair and open competition on merit. The battle between merit and patronage is never really finished. The commissioners are our guardians against patronage. I pay tribute to the work of the current commissioners, especially the noble Baroness, Lady Prashar, who has done so much to ensure that their role remains strong.

The principle of merit must be maintained for permanent appointments to the service. I shall not repeat what the noble Baroness said but, to the extent that the commissioners are prepared to make limited exceptions—for instance, for inward secondments—that is well and good. But they must be in control. There must be no backdoor route for patronage or cronyism.

The legislation should give the Minister power to regulate the conduct of civil servants and special advisers by codes. It should give the commissioners power to make such inquiries as they think fit into the operation of those codes. It should provide for the regulation of special advisers. A limited number of special advisers, properly deployed, can be a great asset to Ministers and their departments alike. It is not fair to special advisers generally that their role has acquired a bad reputation, but there have been difficulties, as everyone knows.

It is in the interests of everyone that the boundaries of the role should be clearly defined, and that those difficulties should be resolved, so far as one can humanly do that. Following the Wicks report, the Select Committee and the noble Lord have proposed the way forward very succinctly. Both this Bill and that of the Select Committee contain very sensible proposals for defining what special advisers cannot do. That seems the right approach, coupled with a limitation on the overall number of special advisers by Parliament, and with the regulation of conduct of special advisers by code, as I mentioned.

There are of course the three posts in No. 10 which have "executive powers". The Select Committee accepts that there should be two such posts, as did the Wicks report. The noble Lord proposes that there should be none. I understand his position, but if the price of getting a Bill were to be that concession, I would pay it provided that the executive powers of the special advisers did not extend to their being involved in recruitment to permanent posts.

Above all, the Bill should bring the operation of the Civil Service more clearly within the oversight of Parliament. The matters should be subject to proper scrutiny, not dealt with in private. The Civil Service Commissioners should make an annual report to Parliament. When I was Secretary to the Cabinet, I received quite a lot of letters of one sort or another. I remember getting one from a Member of Parliament asking me to hold the government to account. I found it very hard to find the words to reply, because it seemed to me so clear that it was the job of Parliament to hold the government to account.

None of that should be contentious. The Government have already accepted, in their reply to the sixth report of the Neill committee in July 2000, that there should be a Bill, and that it should embed selection on merit on the basis of fair and open competition, with responsibility vested in the Civil Service Commissioners. The Government also said in that reply that they accept that an overall limit on the number of special advisers should be included in legislation, and that increases in the limit would require the consent of both Houses of Parliament. Nothing could be clearer.

There is a school of thought which says that most of those things can be accomplished without legislation. In my view, that is not now so—not in the world today where the concerns and issues are more contentious than they were and the role of Parliament more necessary. Frankly, too much water has passed under the bridge.

It is now more than six years since the Government first committed themselves to a Bill. That commitment has been repeated many times, with occasional warm words, but nothing has happened. What matters in the management of change is not only what people say, but what they do. If leaders promise action but do nothing, people draw their own conclusions. The question why the Government have still not produced a Civil Service Bill is becoming deafeningly loud. I hope that the Minister, as others have said, will tell us the date when the Government will bring forward a Bill.

Photo of Lord Smith of Clifton Lord Smith of Clifton Shadow Minister, Northern Ireland Affairs 1:07 pm, 5th March 2004

My Lords, it is daunting for a mere academic such as myself to intrude in this debate, which has had such a galaxy of experienced contributors. It is particularly daunting to follow the noble Lord, Lord Wilson of Dinton, who gave us the benefit of his experience as head of the Civil Service. My feeble credentials, such as they are, are that 40 years ago to the day I gave empirical research evidence and oral evidence to the Treasury committee on recruitment to the Civil Service. I think that the report of that committee was one of the influences that led to the creation of the Fulton committee.

I heartily congratulate my noble friend Lord Lester on introducing the Bill's Second Reading. It is one of the few major and coherent attempts to roll back the ever-encroaching powers of the executive at the expense of those of the legislature. In that respect, I particularly applaud the thrust behind Part 1, which seeks to provide a statutory basis for much government activity that currently takes place under the exercise of the Royal prerogative. It is important in the 21st century to circumscribe and strictly limit that arbitrary and unfettered power of the executive branch of government. That said, I wish to concentrate on Part 2, as most other noble Lords have done, which deals with the Civil Service and political advisers.

It is important to review the contemporary context in which the senior Civil Service has had to operate and some of the concerns that have arisen of late. That picture is very unsatisfactory, and moreover shows every sign of further deterioration. Swift remedial action is called for, and the Bill, if enacted, could provide an important source of treatment. As has been said, the Northcote-Trevelyan and Fulton models, which shaped the character of the Civil Service over the past century and a half, have long since been allowed to atrophy.

Changes designed to meet modern circumstances are, of course, both necessary and natural. Adaptation, we hope, adds to the efficiency of the workings of the state. The problems arise when such innovation continues over time without any pause for reflection whatever on the need to update similarly the operations of the principles of accountability. Changes in the practices of the state bureaucracy require a complementary refurbishment of the constitutional arrangements under which they should operate. That democratic imperative has invariably been neglected by successive governments. One major consequence of that neglect has been the increasing politicisation of the senior ranks of the Civil Service.

The erosion of an independent, non-party, openly recruited, merit-based Civil Service began apace with the Thatcher administration. The Prime Minister chose to intervene personally in the appointment of the highest posts. As the noble Lord, Lord McNally said, "Is he one of us?" became Mrs Thatcher's favourite selection criterion. As with so many other aspects of Thatcherism, politicisation was adopted and greatly extended by the new Labour Government when they came into office in 1997.

Any number of innovations were introduced into the practice of government, including tsars, task forces and the like—and, more importantly, in terms of the Bill, a massive increase in the number of political advisers. Their number has risen, as others have noted, from 39 in 1997 to 81 to date—in February. No. 10 has taken by far the lion's share of those. Two of the advisers there were given authority over the work of civil servants—Mr Jonathan Powell and Mr Alastair Campbell. Those unprecedented powers, together with the mushrooming growth of political advisers, have given rise to much critical concern by both the Select Committee on Public Administration in the Commons and the Wicks Committee on Standards in Public Life. Both have urged a Civil Service Act to place the Civil Service on a statutory basis and formally to distinguish it from the activities of political advisers. To those I would add tsars, task forces, management consultants, lobbyists and think tanks, which have all penetrated deeply into Whitehall. Without an Act to delineate the boundaries between the Civil Service and those denizens of the new political demi-monde, all the personnel involved will coalesce, as they nearly do now, into a Soviet-style nomenklatura.

Those developments have been allowed to happen willy-nilly. No systematic thought in government circles has ever been given to the problems of accountability, or even to adequate management control. When the Department for Constitutional Affairs was created overnight last summer, one could have been forgiven for entertaining the hope that among its functions it would be charged with a task of creating a reflective capacity for examining the implications of changes that inevitably occur in the working of government. Alas, there is absolutely no sign of that at present. The Government are fortunate in having a number of distinguished lawyers in their ranks. Unfortunately, all of them made their fame and fortunes at the commercial Bar. None possesses any significant expertise in constitutional law, and that lack perhaps explains why so little government attention is paid to the basic constitutional principles of public accountability which is one of the bastions of liberal democracy.

That is one of the reasons why the Bill calls for the appointment of a Minister for the Civil Service who would be charged with safeguarding the independence of the Civil Service. Codes of conduct are not strong enough in themselves and need statutory backing as the Bill proposes. The Bill also seeks to put the onus on all Ministers and political advisers of maintaining the integrity and independence of the Civil Service.

It was the view of the Wicks report last year that a Civil Service Act was needed to go some way to restoring the trust between governors and the governed. The Committee on Standards in Public Life has reiterated that in its latest report. I fully appreciate the point it made and its recommendation, but I am a little worried about the use of the word "trust" in this context. It is too redolent of an age where deference by the people was expected. Political scientists 40 years ago demonstrated that the reason for the electoral success of the Conservatives was that they could rely on the support of the deferential working class voter. Happily, he and she have now largely disappeared, but unfortunately the political appeal to trust has not. It was part and parcel of Tony Blair's personal style.

"Trust me" was his clarion call and, for a while, it served him well. But it is an essentially anti-democratic approach. Trust may be expected of subjects, but surely not of citizens. The modern electorate wants to be persuaded by rational argument. Being frank and open with the voters helps to establish credibility in government and the policies of all political parties. I would argue that it is credibility rather than trust that is in most need of restoration. As Wicks says, a Civil Service Act would help to restore that. It would delineate the boundaries between the regular Civil Service on the one hand and the denizens of the political demi-monde on the other. Such an Act would define and codify where one begins and the other ends.

The portents are not hopeful. As the noble Baroness, Lady Prashar, said, only last week the Prime Minister was reported as,

"throwing his weight behind the important themes of the Gershon efficiency review", which calls for a smaller, less departmental and more innovative service, using more specialist skills. In addition, recruits to the more senior posts should come from outside while new entrants would be expected to gain experience in the private sector, or leave altogether, in the course of their careers.

Such reviews by an individual businessman are not new. Edward Heath, Margaret Thatcher and John Major variously employed Sir Derek Rayner from Marks and Spencer, and Sir Roy Griffiths from Sainsburys, for advice. Sir Peter Gershon is but the latest in a long line of gurus brought in to promote greater efficiency in government. That is all very well in itself. But who will look into the democratic implications of an unbridled, buccaneering Civil Service, staffed at the top by a bunch of itinerants? The ever-present tension in government between the competing imperatives of efficiency and democracy must be satisfactorily managed. It has not been and the passage of the Bill would aid that.

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs) 1:17 pm, 5th March 2004

My Lords, I congratulate my noble friend Lord Lester of Herne Hill on introducing the Bill. It is bold because it is three Bills in one. Part 1 extends parliamentary control over the exercise of prerogative powers; Part 2 amounts in itself to a Civil Service Act; and Part 3 creates a statutory basis for certain public appointments. Each of those parts could be a Bill. Part 2 is the key section of the Bill, dealing with the Civil Service. It is certainly the part that has received by far the most attention from speakers in our debate and it is certain that the proposals in Part 2 are those that are most likely to be adopted in legislation in the foreseeable future.

In Part 1 I have singled out Clause 3 and Schedule 1. They would require parliamentary ratification of treaties and parliamentary endorsement of entry into war. It is striking that parliamentary approval is not needed for treaties. There are few other countries where the executive is entirely free to enter into binding treaties with no parliamentary process. In the United States treaties require the consent of the Senate. If treaties require a change in United Kingdom law, then, as the noble and learned Lord, Lord Mackay of Clashfern, pointed out, legislation has to be passed by Parliament. But in other cases there is no need for ratification by Act of Parliament or even by any form of secondary legislation.

As treaties are usually negotiated and signed in private, there is no chance of parliamentary scrutiny of draft treaties. For example, this time last year a new agreement on extradition was signed by the United States and the United Kingdom. This House and the public generally knew nothing whatever about it until after it had been signed. It contained provisions which caused serious concern and it would plainly have been desirable to have had parliamentary scrutiny of the draft. I believe that the treaty-making powers should be brought under parliamentary control. I regret that, on that, I differ with the views of the noble and learned Lord, Lord Mackay of Clashfern.

Many people have proposed that your Lordships' House should have a Select Committee to study draft treaties. That is certainly a step which I consider should be taken, and I believe that all treaties should need ratification by a resolution of each House of Parliament.

I turn to the question of war. War is an act which has enormous consequences for this country. Even limited wars, such as those fought in recent years by the United Kingdom, have very important consequences, and I believe that it is extraordinary that no parliamentary process is required. There may be circumstances in which the urgency of the case requires an immediate reaction; for example, self-defence, where an immediate military response is required to an unprovoked attack. But, in other cases, entry into armed conflict should plainly require parliamentary approval.

I welcome the fact that the Prime Minister sought and obtained the approval of the House of Commons before this country entered into the Iraq war. I suppose that that creates a precedent, but it is one that is not necessarily binding on future governments. I believe that there should be a statutory duty on governments to obtain parliamentary consent to entry into armed conflict wherever it is possible to do so. There, again, I regret that I disagree with the noble and learned Lord, Lord Mackay of Clashfern. I believe that parliamentary consent is particularly important where the war is highly controversial, such as the Suez war in 1956 or the Iraq war last year. In such cases, it is plain that the Prime Minister should have the support of the political representatives of the nation behind him before he commits this country to war.

I turn now to Part 2 of the Bill, which concerns the Civil Service. This is a matter in which I personally have a particular interest, having been a member of the Committee on Standards in Public Life under the chairmanship of Sir Nigel Wicks when we published our 9th report and, indeed, previously, under the chairmanship of the noble Lord, Lord Neill of Bladen, when we published our 6th report. In both reports and, in particular, in the 9th report, we pressed very strongly for a Civil Service Act. In paragraph 10.7 of our 9th report, we said:

"We consider it crucial, in a democracy where the Executive is accountable to Parliament, that the procedures for sustaining the fundamental principles identified throughout this report should be subject to parliamentary scrutiny and decision. This, we believe, is the most certain and effective way of delivering the necessary public and parliamentary confidence that the constitutional boundaries are being effectively maintained".

We set out in Recommendation 34 of the 9th report what we saw as the contents of this Bill. I am very glad that my noble friend has incorporated those recommendations into his Bill. As a number of noble Lords have mentioned, the report of the Public Administration Select Committee also calls for a Civil Service Act and, indeed, it has printed its own draft of such an Act.

Proposals for a Civil Service Bill, to become a Civil Service Act, have received support from all sides of your Lordships' House: from the noble Lord, Lord Sheldon, with his experience as Minister for the Civil Service; from the noble Lord, Lord Wakeham, with his experience in Cabinet; and from my noble friends Lord McNally, Lord Holme of Cheltenham, Lord Maclennan of Rogart and Lord Smith of Clifton. However, I welcome, in particular, the speeches made by the two Members of your Lordships' House who have very direct and personal experience of the Civil Service. I refer, of course, to the noble Baroness, Lady Prashar, as the first Civil Service Commissioner, and the noble Lord, Lord Wilson of Dinton, as the immediate past Cabinet Secretary. Both made extremely powerful and persuasive speeches in favour of the introduction of a proper Civil Service Act.

The Government regularly respond to recommendations of this kind by saying, "Of course we support the principle of a Civil Service Act", but they regularly add, "when parliamentary business allows", or other weasel words indicating that the Government have no intention of introducing such an Act. Parliamentary business does not seem to have thus allowed for 150 years, and it is now time that it did.

We recognise that the Government have now stated their commitment to bringing forward a draft Civil Service Bill—indeed, in this Session. However, we need to keep up pressure on the Government, and I hope that the Minister will be able to indicate something more definite than he already has done about the Government's intentions and timetable in bringing forward their proposals for a draft Bill. If the Minister is unable to give any clear timetable, I believe it is important that this Bill should go forward to a Committee stage in order to enable the debate on these issues to continue in more detail.

My noble friend has had great success with Bills which he has introduced in the past. They have not in themselves been enacted, but many of them have prodded the Government into taking overdue action. My noble friend's human rights Bills were followed in due course by the Human Rights Act 1998. Two years ago, he introduced a civil partnerships Bill. A civil partnerships Bill is now about to be introduced by the Government. Last year, he introduced an equality Bill. The Government now propose consultation on a Bill to bring the existing equality bodies—the Commission for Racial Equality, the Equal Opportunities Commission and the Disability Rights Commission—into a single equality and human rights commission, as he proposed. I hope that this Bill will turn out to be the precursor of a government-backed Civil Service Act.

My noble friend has made enormous contributions to strengthening the constitution and human rights in the United Kingdom. I believe that this Bill adds another to his long list of campaign medals and, on behalf of my party, I have great pleasure in giving it our fullest support.

Photo of Lord Henley Lord Henley Conservative 1:28 pm, 5th March 2004

My Lords, I shall endeavour to be brief because I believe that after two-and-a-half hours of debate on the Bill we should all be very grateful, in the absence of the Secretary of State for Constitutional Affairs, to hear the noble Lord, Lord Bassam, attempt to answer some of the points that have been put in the course of the debate and possibly to take forward some of the assurances that have been given in another place.

I start by echoing what the noble Lords, Lord Sheldon and Lord McNally, said in praising the Civil Service as it is and as it was. I was lucky enough to serve as a Minister—albeit in a much more junior role than my noble friend Lord Wakeham or the noble Lord, Lord Sheldon—for some eight years, and I certainly want to echo exactly what was said about the Civil Service being high-minded, ethical and impartial. I agree with the noble Lord, Lord Wilson, that it is the finest Civil Service in the world. If I say that, at least I am not being partial in the way that the noble Lord thought he might be.

Since 1997, we have seen much of that put at risk. As many speakers have reminded us, we have seen an enormous growth in the number of special advisers. I am told that the number has more than doubled from 39 to 81.

We have seen some special advisers such as Alastair Campbell and Jonathan Powell given executive authority over civil servants and in the first two years after 1997 we saw virtually all the old government press officers eased out, as the noble Lord, Lord Sheldon, reminded the House, and replaced by somewhat more overtly political appointees. It would be interesting to know—I should be grateful if the Minister could tell us—how many of those new appointees formerly worked for the Daily Mirror.

Things have changed. At the same time we have seen the Government repeatedly talk about the need for new legislation on the Civil Service. The noble Lords, Lord McNally and Lord Maclennan, reminded us that even before 1997, when the Government set up a joint commission with the Liberal Democrats—that seems a very long time ago now and I imagine it seems even longer ago for the Liberal Democrats—they gave a commitment to give,

"legal force to the code which should be tightened up to underline the political neutrality of the Civil Service . . . to clarify lines of civil service and ministerial responsibility".

They confirmed that commitment in July 1998 in response to a report of this House. I could list other occasions: in July 2000, in response to the sixth report of the Committee on Standards in Public Life, they again gave a commitment to bring forward a Civil Service Bill. I understand that that commitment was again repeated in 2001 in evidence to that committee.

The Government continue to give commitments but do nothing. As recently as 21 January of this year, in a debate in another place initiated by my right honourable friend Mr Kenneth Clarke on his return to the Front Bench, the Cabinet Office Minister and Chancellor of the Duchy of Lancaster, Mr Douglas Alexander, originally promised a draft Bill in this Parliament but, under pressure from an intervention, he agreed to amend that to a draft Bill in this Session. He then said that there is more need for consultation. More need for consultation after seven years, as one noble Lord put it, seems a bit much. I find it quite extraordinary. We have had consultation over all those years, we have had endless recommendations from the Committee on Standards in Public Life and others, and we have had endless promises from Her Majesty's Government, but nothing appears to happen, other than that we are now offered the promise of a draft Bill, but after consultation.

At this stage it would be very useful if the noble Lord compared and contrasted that with what we see in terms of another constitutional matter, the Constitutional Reform Bill, which has its Second Reading before this House on Monday. It is a Bill that more than anything requires a great deal of consultation and discussion among all parties because it makes fairly major constitutional reforms, and a Bill that this Government appear to think should be shoved through as quickly as possible. I should be grateful if the Minister could give some thought to why we are supposed to have quite so much consultation on a Civil Service Bill, important though it is, but none whatever on the Constitutional Reform Bill, large parts of which were dreamt up on the back of an envelope to get the Government out of a mess that they had made in terms of a reshuffle last summer.

Turning to the Executive Powers and Civil Service Bill, which has been introduced by the noble Lord, Lord Lester, this is one of those rare occasions when I can offer a degree of support, praise and congratulations to the noble Lord. As he knows—he mentioned it—the Select Committee on Public Administration in another place introduced a Bill along the lines of Part 2 of his Bill—a draft Bill—which has now been brought to the House in a formal manner by my honourable friend Mr Oliver Heald, the shadow Leader of the House. I understand that that Bill was to have its Second Reading on 30 January; unfortunately it was never reached. I understand—the noble Lord, Lord Lester, mentioned this—that there was some chance of the Bill having its Second Reading today. I believe that the noble Lord is somewhat more optimistic about procedures in another place; it is fairly unlikely that it will have its Second Reading today, but we wait in hope. As he knows, there is some considerable overlap between that Bill, which has been introduced by my honourable friend—what we could call the Public Administration Committee Bill—and Part 2 of his Bill. The overlap is great enough for one of his honourable friends in the debate in another place on 21 January to have said:

"I see no reason why the draft Bill that is effectively before this House and the Bill that my noble Friend [Lord Lester] hopes will receive a Second Reading in the other place in March should not be considered together before a special joint Committee for pre-legislative scrutiny as quickly as possible. We could then really make progress—never mind all this business about holding yet more consultation. The Government are always consulting, but they use that as a very neat way to delay decisions. If they really wanted to make progress, they could do so now. I see no reason, after waiting seven years ... why we should wait for yet more consultation beyond that which has already taken place".—[Official Report, Commons, 21/1/04; col. 1352.]

I can support Part 2 of the Bill, but my support does not necessarily apply to Part 3. Having read that quotation from Mr Paul Tyler I have considerable sympathy for the sentiments behind his suggestion that the matter could be considered by a Joint Committee. However, while having sympathy with that, I do not believe that that is necessarily the best way to proceed. Valuable as both Bills are to protect the impartiality of the Civil Service and to put the responsibilities of special advisers on a statutory footing—we on these Benches have a long-standing commitment to the enactment of such legislation—nevertheless I do not believe that this Bill is necessarily the best way forward.

In a matter as important as this we need a government Bill and soon. If this Bill and my honourable friend's Bill in another place can encourage the Government to produce one, they will have served a very useful purpose. I end by saying that I look forward to the noble Lord, Lord Bassam of Brighton, taking forward the commitment that the Chancellor of the Duchy of Lancaster made on 21 January; telling us when we shall see the draft Bill in this Session; and if we are to see it in this Session, will it be possible to complete it in this Session, or will it have to be carried over into another Session?

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip 1:37 pm, 5th March 2004

My Lords, I have two early tasks. One is to join in the general congratulations to the noble Lord, Lord Lester, on bringing the Bill to your Lordships' House for Second Reading today. It has stimulated one of the most sparkling debates on the subject to which I have had the benefit of listening for a very long time. As ever, as the noble Lord, Lord Goodhart, said, it follows a long tradition of initiatives of the noble Lord, Lord Lester, which take us forward in progressive government and towards reasserting an important series of principles in legislation.

My other early task is to declare an interest. Recently, my partner has become a civil servant at Grade 7. I feel that I should open my heart on that matter and share that with your Lordships. I confirm that I have that interest. I am hoping that it will provide me with important insights into the working of the Civil Service. However, I now understand better the contents of my eight year-old daughter's lunch box which I have to prepare daily as a consequence of her mother going to work rather early.

Those two early tasks done, I turn to the business in hand. We have had a star-studded and distinguished cast of speakers in the debate, focusing on issues that have been clearly identified in the Bill put forward by the noble Lord, Lord Lester. It is fair to say that there is almost universal agreement on the importance of Part 2 of the Bill, which looks at the Civil Service and the position of special advisers. There is little dissent as to the importance of that element of the Bill.

There is rather more scepticism over Parts 1 and 3 of the Bill. The noble and learned Lord, Lord Mackay of Clashfern, and the noble Lords, Lord Wakeham, Lord Wilson of Dinton and Lord Henley, were less certain of the value of those parts, although they recognised the importance of the issue. The noble Lord, Lord Goodhart, said that it was three Bills in one. He is probably right.

All noble Lords gave credit to and supported the independence and the integrity of the value system that underpins the Civil Service. I echo that sentiment from the Government Benches. Indeed, on reading the Prime Minister's very important speech last week I thought that he affirmed that value very powerfully indeed. Having said that, the noble Lord, Lord Lester, has brought forward a carefully crafted Bill which raises important questions about the organisation of our system of government. I have already welcomed the thoughtful contributions that it sparked. I am not sure that I want to be described too often by the noble Lord, Lord McNally, as a "dead bat" or even a "dead hand", I prefer to be a "flashing blade". I am not sure whether I shall illustrate that during the course of my response. That is certainly the mode in which I usually approach most things.

The noble Lord, Lord Lester, will be much more familiar than I am with the historical context of our debate. It was of course—I cannot hesitate in making this reference—a Liberal Cabinet led by Lord Russell in 1854 which first decided to introduce a Civil Service Bill. As noble Lords have adroitly observed, it has taken a long time to see one. It promptly backtracked and it was left to Gladstone in 1868 to introduce in most part the Northcote-Trevelyan changes. He probably agreed at that point that a Bill was necessary.

Before I turn to the specific provisions of the noble Lord's Bill, I should make some general remarks about the exercise of prerogative powers. It is important to make clear that Ministers are, of course, already accountable for the exercise of prerogative powers, just as they are accountable for the full range of their departmental business. It is for Ministers to account for and to justify their actions to Parliament, and for Parliament to hold Ministers to account—a point which has been amply echoed and exemplified during our deliberations on the Bill this morning. In the context of discussing prerogative powers, we look forward to the forthcoming Public Administration Select Committee's report on this issue.

The noble Lord's Bill deals in large part with the regulation and conduct of the Civil Service. Additionally it covers executive powers. Much debate was provoked on that issue—notably I thought from the noble and learned Lord, Lord Mackay of Clashfern.

In their response to the 9th Report of the Committee on Standards in Public Life, the Government committed themselves to publishing a draft Civil Service Bill for consultation. There has been much comment on that during the debate. We said that we would publish the Bill once we had received the Public Administration Select Committee's proposals for legislation. That committee published its draft Bill on 5 January.

In another place on 21 January—as a number of your Lordships have mentioned—the Minister for the Cabinet Office, Douglas Alexander, gave a commitment that the Government would bring forward a draft Bill for consultation—and I want to make this absolutely plain—in this parliamentary Session. I repeat that commitment today. Last week the Prime Minister referred to what he described as Douglas Alexander's announcement of our plan for a Civil Service Bill.

So it is clearly embedded in government thinking. I can assure the House that the views expressed in today's debate will be taken into account as we continue with the preparation of our own draft Bill. It is important that we seek to build consensus. I do not think that there is exact consensus. In a sense, the Bill of the noble Lord, Lord Lester, gives voice to that in Parts 1 and 3. I should say that I cannot offer my support to the noble Lord's Bill today, although obviously, in line with convention, we shall not oppose its second reading.

The Bill would place the Civil Service and the Civil Service Commission on a statutory footing. It would require Ministers to uphold the impartiality and integrity of the Civil Service and to give statutory force in primary legislation to the Civil Service Code. Noble Lords have supported those important principles.

We will take those proposals into account in framing our draft Bill. I should like to reassure the House that we place the highest importance on maintaining the impartiality and integrity of the Civil Service. In our response to the 9th Report of the Committee on Standards in Public Life we set out a number of commitments to further underpin those values. First, the appointment of the first Civil Service commissioner—and I pay great tribute to the noble Baroness, Lady Prashar, for her work—will be made following consultation with the main opposition parties. Secondly, the Civil Service Code will be amended to clarify the procedures that a civil servant should follow where he feels that a special adviser is exceeding his authority. Thirdly, we will amend the special advisers' code of conduct to clarify their relations with civil servants. Our draft Bill will build on that important work.

Many noble Lords referred to the position of special advisers. My noble friend Lord Sheldon led the charge very ably. He identified a problem with their relationship with the rest of the Civil Service. The noble Lord, Lord McNally, as one would expect, praised the role of special advisers, having of course declared, quite rightly, his past interest and involvement. I was interested that the issue of a cap on the number of special advisers was raised, although the noble Lord, Lord Holme, who is no longer in his place, said that he was less concerned about that. I think that he suggested that was a matter of lower importance. He also wanted us to look very closely at the relationship of special advisers with civil servants, but I think he understood their importance and value.

The noble Lord's Bill makes a number of proposals in relation to special advisers, including placing the code of conduct on a statutory footing and requiring special advisers to uphold the integrity and impartiality of the Civil Service. We will of course take those proposals into account in preparing our draft Bill. However, while today we have heard the familiar range of criticisms of special advisers, it is worth reminding the House that there is substantial agreement across our public life about the valuable role that special advisers can play. The noble Lord, Lord Wilson of Dinton, underlined that.

The First Division Association, in giving evidence to the Committee on Standards in Public Life, said:

"The FDA has made the point in our evidence and separately that the special adviser system is a good one; it is an asset . . . special advisers are an asset to the Civil Service; they are an asset to Ministers".

The independent Review of Government Communications—the Phillis review—said:

"We believe special advisers to be an integral part of modern Government, and their political affiliation is both welcomed by Ministers and an important buttress to the impartiality of the Civil Service".

And the Committee on Standards in Public Life in its Ninth Report referred to,

"unanimous agreement about the value which they bring to our constitutional arrangements".

I thought that the noble Lord, Lord Marlesford, although he is not in his place, made a useful intervention when he helpfully pointed out the value that special advisers bring to government in fresh thinking. I do not think we should put that on one side, although the noble Lord, Lord Maclennan, seemed to be rather more worried about the links between the private and the public sectors in bringing in some private sector experience into the public service. I would like to think that the public service ethos is strong and powerful enough and has around it a set of principles which enable us to use the best from wherever it comes.

It is important that special advisers observe the highest standards of conduct. I remind the House that this Government introduced the model contract for special advisers, setting out clear and transparent terms and conditions for their employment, and the Code of Conduct for Special Advisers, which the Public Administration Select Committee described in 2001 as,

"A clear statement of the role of advisers and a helpful strengthening of the protection provided to the neutrality of civil servants".

Our Government have a strong track record on matters of propriety when it comes to the role of special advisers and their relationship with the rest of the Civil Service.

The Government are committed to public appointments on merit, using a fair, open and transparent process. The Bill's provisions are similar to a number of recommendations made in the Public Administration Select Committee's report of July 2003. These included proposals for the involvement of Parliament, through relevant Select Committees, in key public appointments, and parliamentary approval of the appointment of the Commissioner for Public Appointments. The Government's response, published last December, makes clear our view that the current arrangements for making public appointments are rigorous and effective. We see no need to change them to further strengthen that rigour and effectiveness—they are about right. Ministers should be responsible for the appointments that they make, and Ministers should account to Parliament for those appointments. As the Committee on Standards in Public Life has said, a clear line of accountability is the best way to ensure that appointments are properly made and that the right people are held responsible for those appointments.

The noble Lord, Lord Goodhart, focused on the provisions of the Bill proposed by the noble Lord, Lord Lester of Herne Hill, that deal with our international commitments, with his interesting reflections on the United States example. The Bill contains a number of provisions that would fundamentally affect the exercise of authority in the conclusion of treaties by the United Kingdom. It was interesting that, with their far greater experience of government than mine, the noble Lord, Lord Wakeham, and the noble and learned Lord, Lord Mackay of Clashfern, were not certain of the Bill's approach with regard to treaties.

Some of the provisions seek to draw on existing parliamentary practice, but the key planks of the Bill, as it relates to those United Kingdom treaties that are subject to ratification, go a considerable step further. They would require either a resolution to be passed in both Houses, or a report to be made by a Select Committee to Parliament before ratification can be effected for every such treaty. These provisions would not only delay the ratification process, but would be a substantial burden on Parliament's time, without necessarily or materially adding to the scrutiny that Parliament is already at liberty to make.

We have said that we remain open to considering ways of improving the efficient and effective scrutiny of treaties by Parliament, and we have taken steps to do so. We have widened the scope of the Ponsonby Rule, on which the noble Lord, Lord Wakeham, remarked, to allow more treaties to fall within its remit, and to ensure that Select Committees in another place have the opportunity to consider each treaty laid before Parliament under that procedure. Since 1997—following the suggestion of the noble Lord, Lord Lester of Herne Hill—all such treaties have routinely been accompanied by an explanatory memorandum. These are made directly available to all Members, and widely published, including on the Internet. The measures proposed in this Bill would not enhance the efficient and effective scrutiny of treaties by Parliament, and for that reason we do not support them.

A number of specific points were raised during the course of the debate, which I may not have covered in my overall commentary. It is right that I address some of those points now, before I conclude. The noble Lord, Lord Lester of Herne Hill, made some specific comments about executive powers. It is worth reminding your Lordships' House that we made it clear when we were elected that we intended to strengthen the centre of government. There has been criticism of the numbers of special advisers in place. As a number of noble Lords said, there are some 27 special advisers at No. 10. This compares with a senior Civil Service that is comprised of some 3,500 officials. Much has been made of the 1997 Order in Council allowing up to three special advisers in No. 10 to be appointed with executive powers. The noble Lord, Lord Wilson of Dinton, as Cabinet Secretary, described the order as,

"putting those three posts back to where all special advisers were before 1991".

The 1997 Order in Council simply removed the restriction confining advisers solely to giving advice to Ministers.

The noble Lord, Lord McNally, referred to the Phillis review of government communications. It is worth reflecting that since the appointment of David Hill as director of communications that position no longer carries any executive powers. The noble Lord, Lord Sheldon, made some comments about the clarity of roles in the Civil Service. We would all agree with that. It will be one of the tasks of the new permanent secretary for government communications to ensure that the existing rules for guidance are fit for purpose and to decide whether any further clarification is needed on that point.

I have covered most of the points that were raised. I detect the unhappiness at the delay, as many noble Lords see it, in bringing forward a Civil Service Bill. I heard clearly what the noble Lord, Lord Henley, said about consultation. We believe that consultation is right. As the noble Baroness, Lady Prashar, said, we have the prospect of three Bills on the Civil Service in play. The noble Lord, Lord Wilson of Dinton, said that he did not believe that it was a difficult task to draft a Bill and to draft it properly.

We will be publishing a draft. I cannot give a precise timetable. It will be in the current parliamentary session. If I had a preference—I speak slightly out of turn here—it would be published before the summer Recess. It will have to take its place in the drafting queue. I understand that it is in the process of being drafted. I also heard the important pleas made both today and on other occasions for there to be some joint consideration of the Bill by a committee of both Houses when it is published. We will consider that, and we will listen carefully to what both Houses have to say on that point.

I have set out the reasons why the Government do not lend their support to the noble Lord's Bill. However, we are absolutely committed to upholding the integrity, independence and impartiality of the Civil Service and the powerful and important voice that the Civil Service gives to impartial and high-grade advice. I entirely go along with the point that we have the finest Civil Service in the world. It is a Civil Service that needs to change and reflect modern times, the case for which was powerfully made by the Prime Minister in his speech.

We accept the case for Civil Service legislation, and today's debate has assisted us greatly as we work up our own draft Bill for consultation. I join in the congratulations of the noble Lord, Lord Lester of Herne Hill. Today's debate, his Bill and the Bill that is being produced by Dr Tony Wright have been valuable. I look forward to the time when we will have more discussion on a draft government Bill, which all Members of your Lordships' House who have been involved in today's debate have long awaited.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat 1:58 pm, 5th March 2004

My Lords, I remember some years ago I was speaking about one of my human rights Bills at nine o'clock in the evening, when a grumpy Member of your Lordships' House got up and said, "I want to remind the noble Lord, Lord Lester of Herne Hill, that it is after the dinner hour, and I think that no serious points ought to be made in this House after the dinner hour". I am aware that in one minute's time, it will be after the lunch hour, so I will speak very briefly indeed. Before I say anything more, I want to comment on the festooning of compliments, as it was described by the noble Lord, Lord Wilson of Dinton. At the end of the 19th century there were two very distinguished constitutional historians called Stubbs and Freeman. They made a habit of writing complimentary reviews about each other's books, until one day a wag said:

"Ladling butter from alternate tubs, Stubbs butters Freeman, Freeman butters Stubbs".

There is a certain tendency for excessive compliments. They are always appreciated, but I would like to pay a compliment to everyone who has taken part in this debate. Everyone has made a very important contribution. Taking part in the debate were four former Cabinet Ministers, a former Cabinet Secretary, a serving Civil Service Commissioner with huge previous experience in public administration, two former special advisers who both knew the rules and kept to them—including, I hope, myself—and a very distinguished former Lord Chancellor. This has been a most remarkable, wise, well-informed debate. If only the playwright Samuel Beckett were still alive, the name of the game would have been "Waiting for Godot", because we still wait for Godot. Although it is quite clear that the Minister would like a Bill to be published before the end of July, it is quite clear also that he is not allowed to say so because the Government do not have that commitment.

At this stage, I shall say little about the criticisms made of Parts 1 and 3, although I would like to say something. There has been not near-universal, but universal support for the principles in Part 2. Nothing that the Minister has said today suggests that the Government disagree with any part of Part 2 or, for that matter, any part of Dr Wright's committee's draft Bill. It would be perfectly possible to segregate Part 2, which comprises 15 clauses including the supplementary clauses, and one schedule—a nice, short, simple Bill—from the rest.

Why did I put the rest in? It is part of a constitutional framework, and Part 2 is a subset of that. I have enormous respect for the noble and learned Lord, Lord Mackay of Clashfern, but he and I have never really agreed on some constitutional reform proposals, as he will remember. He, I think, would like the present arrangements, whereby the monarch rather than Parliament is king. I would prefer to put in charge Parliament and the constitution, as is the case with the constitutions of the rest of the Commonwealth and the Republic of Ireland, for example. But that is a wider question. Luckily, the Public Administration Committee will produce a report very soon on prerogative powers. When that report is published we will all study it, and perhaps some of us, including me, will change our minds. I shall say nothing more about either that or public appointments.

The real question is: what on earth are we to do, given the shilly-shallying and procrastination of the Government about introducing even a draft Civil Service Bill at this stage? I suggest that one might make progress in the following way: if noble Lords give this Bill a Second Reading and it is then remitted to a Committee, given that the Official Opposition, represented here by the noble Lord, Lord Henley, have indicated enthusiasm for some mechanism of advancing the issues properly, for which I am most grateful, the idea put forward today by the noble Baroness, Lady Prashar, for a Joint Committee of both Houses, seems a way forward, provided that it did not have to wait perhaps until autumn or winter for a government draft Bill. One way forward might be to set up a Joint Committee of both Houses after Second Reading, with suitable terms of reference to consider: Dr Wright's Bill, Part 2 of my Bill, but not the rest, and, when it arrives, the Government's draft Bill.

In other words, the committee could start its work now; it could then be enriched by the Government's Bill; the consultation would begin under proper joint parliamentary auspices; evidence could be given; the Government could be helped by listening to that evidence; they could produce their Bill in July, September or October; and the committee could produce its report before the end of this Session, after full consultation. That seems preferable to my taking up parliamentary time in taking this Bill through all its legislative stages in this House, only to be lost in the Commons through lack of parliamentary time.

That seems a good reason for giving this Bill a Second Reading, so that we can seek to raise the Government's game and make progress with all deliberate speed and not all deliberate procrastination. Therefore, I ask the House to give this Bill a Second Reading.

On Question, Bill read a second time, and committed to a Committee of the Whole House.