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 Constitutional Reform (Prerogative Powers and Civil Service etc.) 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.
My Lords, I am very grateful to the noble Lord, Lord Rooker, for keeping me out of grave breach of a constitutional convention.
I beg to move that this Bill be now read a second time. It is designed to strengthen our system of parliamentary democracy by making the Executive more accountable to Parliament. I am grateful that so many noble Lords of such great experience and authority will participate in this debate. With no disrespect to the noble Lord, Lord Bassam of Brighton, one might have hoped that the Secretary of State for Constitutional Affairs would have made himself available to add his own unique authority to the proceedings.
Several noble Lords have expressed regret at not being able to be here, including the noble Lords, Lord Armstrong of Ilminster, Lord Butler of Brockwell, Lord Carter and Lord Brennan. I know that the noble Lords, Lord Armstrong and Lord Butler, are particularly supportive of the parts of the Bill dealing with the Civil Service. Perhaps I may also thank Kate Beattie, my parliamentary legal officer, who drafted the Explanatory Notes, which will make the position clear to those who find that the drafting does not do that itself.
The Bill places under parliamentary authority the executive powers—
My Lords, perhaps I may intervene briefly to say that I said to the noble Lord, Lord Lester, that I was unlikely to be able to be here today, but, as you see, I am. If the noble Lord, Lord Maclennan, allows me, I will intervene in the gap.
My Lords, once more, I am kept off the grass. It is always particularly enjoyable when mistakes are made by elderly Queen's Counsel in this House—I have noticed—who are notoriously bad on anything to do with the procedure, practice or customs of the House. The Bill places under parliamentary authority the executive powers exercised by Ministers by virtue of the Royal prerogative, including treaty making and going to war. It puts on a statutory footing the basic principles on which the Civil Service is based and the ground rules governing the relationships between Ministers, civil servants, special advisers and Parliament. It establishes a procedure for the approval of some key public appointments, and it provides for direct public access to the Parliamentary Commissioner for Administration—the Parliamentary Ombudsman.
Each of those proposals has been raised in previous Private Members' Bills that have won considerable support in this House and beyond. But on each occasion, the response of the present Government has been negative. When the Minister replies, we shall discover whether spring shoots of glasnost and perestroika are peeping above the ground during the transition from one Prime Minister to another.
Gordon Brown, wrote encouragingly this week in the Guardian that,
"Britain is ready to shape a constitutional settlement . . . forging what will become a new compact between the local and the national, and between the executive and the legislature".
This Bill is an element in such a compact. It does not seek to strengthen direct democracy by giving more power to the people. It is about representative democracy and parliamentary sovereignty, not popular sovereignty.
The principle of parliamentary supremacy is a fundamental principle of our unwritten constitution. According to that hallowed British principle, the Executive are accountable to Parliament rather than to the sovereign. But, as Lord Hailsham of St Marylebone famously observed in referring to our system as an "elective dictatorship", traditional British theory does not take account of the fact that, instead of Parliament controlling the Executive, the Executive usually control Parliament—or, at any rate, the House of Commons. What are termed Royal prerogatives are in fact Executive prerogatives—the prerogatives of Ministers of the Crown, derived from the divine powers of kings, now worn informally by Ministers in fashionable designer clothing.
A central question raised by this Bill is: who should be sovereign—Parliament or the Executive? Another question is whether our present Parliament is willing to take the theory of Parliamentary sovereignty seriously by translating it into political and legal reality. The principle on which the Bill is based is that in our modem democratic society Parliament rather than the Executive should be sovereign, as was envisaged by those who made the constitutional settlement in 1688. That principle is shared by the Commons Public Administration Select Committee, chaired by Tony Wright MP, to whom and to whose work I pay a very warm tribute.
"Giving Parliament a greater role in the exercise of . . . [prerogative] powers would be an important and tangible way of making government more accountable".
I agree, and I welcome the fact that Ken Clarke's Democracy Task Force will consider the very matters which are the subject of this Bill, and which are core values of Liberal Democrats and of many in the Labour Party; namely, parliamentary accountability for treaty and war-making powers, the Civil Service, and public appointments. It is those common values that informed the Cook-Maclennan agreement on constitutional reform and we need to draw on them again across the parties in developing the next stage of constitutional reform.
I turn briefly to the Bill. Part 1 places under the authority of Parliament executive powers exercisable by Ministers by virtue of the Royal prerogative. Special provision is made for treaty making and 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. There is of course parliamentary scrutiny of EU legislation, but there is no equivalent scrutiny for treaties generally, as the Wakeham commission noted in its report on Lords reform, and this Government have failed to give effect to the Wakeham recommendations. On war powers, it is an anomaly that there is no requirement that parliamentary authority must be sought before we wage war.
Clause 1 deals with the executive powers that are to be placed under the authority of Parliament within two years of the coming into force of the Bill. It excludes rights and powers that belong to the Queen personally or to any other member of the Royal Family. 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.
The time is long overripe to put the Civil Service on a statutory footing. I am particularly pleased that the noble Baroness, Lady Prashar, is in her place to express her views on the matter. She is a very distinguished recent First Civil Service Commissioner. It is now long due that British citizens, like the citizens of other parliamentary democracies, have a politically neutral Civil Service appointed on merit and without political interference or control by partisan special advisers—and I was once a partisan special adviser myself.
The ideas reflected in Part 2 on the Civil Service follow the recommendations of the Northcote-Trevelyan report on the organisation of the permanent Civil Service in 1854, of the Cook-Maclennan agreement and the more recent recommendations of the Committee on Standards in Public Life in its ninth report of April 2003. In November 2004 the Government published a draft Civil Service Bill and a related consultation document. However, they were still not convinced of the need for legislation and merely wished,
"to consult on whether legislation is a necessary and desirable step".
Some 15 months later, no progress has been made. The noble Lord, Lord Butler of Brockwell, who as I have said regrets that he cannot be here today, has recently spoken publicly about his disappointment that the Government have not fulfilled their promise to bring in a Civil Service Act.
Part 2 creates a framework for the Civil Service structure in England, Wales and Scotland. The Wicks Committee 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. Clause 10 makes 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.
Clause 13 provides that the Minister for the Civil Service shall issue codes of conduct for civil servants and for special advisers, and 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 Cabinet Secretary and the First Civil Service Commissioner have recently launched a consultation on a new Civil Service Code. While the new draft code contains some improvements, it does not alter the constitutional basis of the Civil Service and the code, which remains the exercise of prerogative power.
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 there are now 78 special advisers, no fewer than 24 of whom are assigned to the Prime Minister. Up to three special advisers may exercise executive powers over civil servants. In June 2005 the Government amended the Civil Service Order in Council by stealth, without making any Statement in Parliament or public announcement. Among other changes, special advisers will now be able to provide what is known as "assistance" to Ministers, as distinct from providing only advice. Sir Alistair Graham, chair of the Committee on Standards in Public Life, strongly criticised the Government's secretive approach and observed that:
"The revision lays the Prime Minister open to the suggestion that he is strengthening the mechanisms through which personnel can be recruited into the Civil Service outside the normal merit-based arrangements".
The Bill would not preclude the use of special advisers, but Clause 11 provides that no special adviser may manage, direct or issue instructions to a civil servant in the discharge of that civil servant's public functions. Under the Bill, 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. Clause 12 requires an annual report on the appointment, role and responsibilities of special advisers.
Part 3 gives effect to the recommendations on nationality in the Public Administration Committee's draft Civil Service Bill. Clause 17 identifies these restrictions, dating back to the Act of Settlement 1700, which prevent persons born outside the UK being employed in parts of the Civil Service, and directs whether they should be revoked, repealed, omitted or disapplied. Clause 18 sets out various powers to impose new nationality requirements.
The Delegated Powers and Regulatory Reform Committee has criticised Clause 18 on the basis that it allows rules to be made by a Minister of the Crown or an officer of the Crown but does not require them to be laid before Parliament. That is a fair criticism. The Bill can be readily amended in Committee to allow any new nationality rules to be subject to the negative resolution procedure.
Let me pause for a moment and say that, like the noble and learned Lord, Lord Howe of Aberavon, who was kind enough to write to me about this, I regret that all this needs to be codified. Unfortunately, however, times have changed, and I think that many in the House will agree that codification is now necessary.
Part 4 concerns the procedure for making certain public appointments. It is not satisfactory that appointments to key offices such as the Parliamentary Commissioner for Administration and the chair of the new Commission for Equality and Human Rights are made by Ministers without any parliamentary advice or consent.
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 is appointed by the Queen under the Public Appointments Order in Council 2002. Clause 21 puts the office of Commissioner for Public Appointments on a statutory footing. Clause 22 provides for a public appointments committee, to be drawn from Members of the House of Commons. Clause 19 provides that both the commissioner and the committee must be consulted before certain public appointments, specified in Clause 20, are made.
Part 5 creates a public right of direct access to the Parliamentary Commissioner for Administration. This will provide a direct avenue for members of the public to make complaints about administrative failure and neglect. It is a measure of practical importance, which I promote in the interests of active citizenship and improved accountability of government.
The parliamentary commissioner is an officer of the House of Commons and can undertake an investigation only at the request of an MP. The commissioner reports the result to the MP. That is the so-called MP filter, which fetters our Parliamentary Ombudsman and has no equivalent in any other democracy in any other part of the world. Part 5 does not abolish the MP filter but creates a dual mechanism for access to the ombudsman by maintaining the filter and by introducing direct access by members of the public.
Direct access to the Parliamentary Ombudsman or equivalent officer by members of the public is allowed in most other democratic countries that have such an institution—in fact, all, to my knowledge. There is direct access to the Health Service Commissioner for England and the Local Government Commissioner. The current Parliamentary Ombudsman, Ann Abraham, has expressed her support for this modest legislative change.
I much look forward to the debate and I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Lester of Herne Hill.)
My Lords, I offer my warm congratulations, and not just conventionally, to the noble Lord, Lord Lester, not only on presenting this Bill but on initiating this debate. I am happy to declare myself a supporter of the Bill, although I hope that that will not be taken as committing me to every word in the draft.
The noble Lord has deployed the case for the Bill with his usual care and skill, and nothing would be gained by my seeking to improve on his presentation. So I hope your Lordships will forgive me if I devote the time available to anticipating some of the difficulties which may be urged and exploring some of the challenges which may await us. Indeed, one of the benefits which the noble Lord has conferred on us is the opportunity to consider some of the issues which arise. In the interests of brevity, I propose to confine my remarks to armed conflict and peacekeeping operations.
Constitutional reform rarely presents itself spontaneously to the mind. I am aware that the noble Lord has been urging some of these reforms for a very long time, but I think it was the tragic saga still unfolding in Iraq which has evoked so much debate inside and outside Parliament. The fourth report of the House of Commons Public Administration Committee, to which the noble Lord referred, is an example. I am particularly indebted to the directors of three NGOs—the One World Trust, the Federal Trust for Education and Research and Democratic Audit at the University of Essex—for the thoughtful report they have published under the title Not in my Name. I should declare an interest as president of the One World Trust.
Given all that, it would be a sad reflection if, while these questions were being discussed outside Parliament, there was no discussion in the Chambers of the two Houses, hence my gratitude to the noble Lord, Lord Lester.
First, the pressures on our time ensure that none of us can be well informed across the whole spectrum of human knowledge. For Members of the other place, the greater part of lobbying from their constituents is related to matters nearer home; there are rarely many votes to be earned by time spent on international relations. In your Lordships' House, our greatest contribution is normally cited as the scrutiny of texts, and international affairs do not present so many occasions for that as do domestic affairs. I hope that the Bill may help to redress that in due course if we are charged with the scrutiny of treaties.
Parliament has not acquired a reputation for harassing governments about their foreign policy. I have been re-reading the series of very entertaining lectures by A J P Taylor entitled, The Trouble Makers. For me, two lessons emerged. First, for much of our history over the past 300 years, governments have considered themselves better qualified than the parliamentary Benches to conduct foreign affairs because they were the shamans and the priests who carried within their breasts the accumulated wisdom of the Foreign Office. Like shamans everywhere, they tried to ensure that that wisdom should not be widely disseminated.
Of course, international diplomacy consists largely in not letting others know all that is in your mind, so there was a ready-made reason for not sharing their plans with Parliament. At best, Parliament discovered what had transpired when the process was complete. I appreciate that that is sometimes inevitable, but it does not facilitate parliamentary control nor, indeed, widespread understanding of the Government's problems and how they propose to address them. The Government might actually benefit if we were better informed.
The second lesson is that the accepted wisdom of the establishment is not always endorsed by the outcome of their policies. What the dissenters are saying now becomes the accepted wisdom of the future. If I may put it in the words of A J P Taylor:
"Today's realism will appear tomorrow as shortsighted blundering. Today's idealism is the realism of the future".
We sometimes need to make the best hand we can at learning as we go along. But first there must be a need to relax the culture of secrecy. Perhaps the Government's first task is to assist parliamentarians with the information we will require for our new mandate. I hope that the good will of the Government will be in evidence.
At best, it is not easy to provide up-to-date information about an ongoing and fluid situation, but that does not provide governments with an exemption from trying. The intelligence on which Ministers and diplomats act cannot always be disclosed. They must respect the need to conceal the sources. The Government are to be congratulated on the publication of the dossier of September 2002. That was the first occasion on which a government had made public a report by the Joint Intelligence Committee. I do not believe that there was a deliberate intention to mislead, though the report may not have been published had it not been thought to lend support to the Government's case.
Normally, reports of the JIC were intended to be read by people who were accustomed to reading intelligence reports. They would have appreciated that intelligence, by its very nature, is tentative and incomplete. They would have understood that weapons of mass destruction vary substantially in kind, size and effect. The Government must now have learned that what is informative for one readership may be misleading for another.
We are at the beginning of what may transpire to be an extended learning curve. Furthermore, if the requirement for parliamentary authority is to bite, Parliament may need to break through the deference which it has traditionally shown to those who conduct our international relations. "If you knew what I know" is an insidious syndrome. I fear that the Bill will encounter the criticism that, even had it been on the statute book at the outset of the Iraq crisis, it would not have prevented the Government pursuing the course on which they were determined. Parliamentary authority would have been forthcoming. There were debates in another place on
I have one further concern. The burden of all the discussion consequent on the invasion of Iraq has been the idea that the function of Parliament is to act as a brake on precipitate action. Sometimes what may be needed is not a brake but an accelerator. During the Rwandan genocide, the politicians and the diplomats considered and discussed; many delegates to the Security Council awaited instructions from their governments; national governments pondered the risks; and when the council called for the deployment of armed forces, some states waited to see what other states would do. Meanwhile, the civilian population suffered casualties at the rate of three times the number of casualties sustained in New York on
None of this is an argument against the Bill; indeed, it is an argument for proceeding to a Committee stage. The United States appears to find the equivalent provision in its own constitution a practical and valuable requirement. If the Bill is awarded a Second Reading, the Committee stage promises to be an interesting experience. I would like to read the political commentaries 10 years from now.
My Lords, I too congratulate the noble Lord on introducing this Bill and on its wide scope. It may be some encouragement to him, with regard to the Government's attitude, that the Queen's consent seems to have been signified at a comparatively early stage of the proceedings in this Bill.
Since this Bill has emanated from the Front Bench of the Liberal Democrat Party, it may be appropriate to offer my congratulations to Sir Menzies Campbell on his election as leader of that party. It is the second occasion in recent times that a United Kingdom party has chosen its leader from among the members of the Faculty of Advocates. I am very sorry that the first of them, John Smith, was cut off prematurely from the role to which he had been elected. I wish Sir Menzies every success in the challenging role of leading the Liberal Democrat Party.
Some parts of this Bill are clearly and urgently required. I speak particularly of the part relating to the position of special advisers. I was honoured to be some 14 years in government and I had no experience whatever of special advisers. The noble Lord, Lord Lester of Herne Hill, was one some little time back and therefore speaks with a certain experience. However, it is time that this branch of executive power is brought under constitutional restraint. The way of doing that which is proposed in this Bill strikes me as suitable.
I am glad that the noble Lord, Lord Sheldon, is going to speak today. I associate myself in advance with what he says because I have heard him speak on this subject previously. I have every reason to think that his views and mine are close.
So far as public appointments are concerned, I am glad that the noble Baroness, Lady Prashar, with her unique experience and talent in this area, is going to speak after me. One recent development in relation to some areas of public appointment which troubles me is a multiplication of officials whose job it is to see that others are doing their job properly. For example, as your Lordships know, a judicial appointment commission has recently been set up to appoint judges, but another commission exists above that to see that the first commission does its job properly. The Minister is in some place above that. This kind of development is apt to dilute the direct responsibility of the Minister to Parliament. If I share my responsibility, I am able to share the blame if something goes wrong. There is a lot to be said for individual, personal responsibility in government. Where something goes wrong in the service for which a Minister is responsible, that Minister is directly responsible to Parliament. That doctrine is in danger of being diluted by a multiplication of officers whose job it is to supervise others under ministerial responsibility.
I shall spend the rest of the time available to me on dealing with the relationship that is specified in the first part of the Bill, "Parliamentary Authority for Executive Powers". My understanding is that one of the fundamental responsibilities of Parliament is to bring the executive to account for all their actions, including those which are under executive powers. Therefore, there may be some question about whether Clause 3 is appropriate, because it states in advance:
"In respect of any particular exercise of executive powers, the general rule is that appropriate parliamentary authority shall be regarded as provided by virtue of this subsection".
In other words, those who are holding the executive to account are giving their authority in advance to what the executive are going to do. It is a bit difficult to hold somebody to account if you are going to approve in advance what he is going to do, so I doubt the wisdom of that particular way of putting the matter. I see the desirability from some points of view in executive control of certain prerogative acts; the example that has been highlighted is that of going to war.
I had in mind some of the difficulties that the noble and learned Lord, Lord Archer of Sandwell, referred to. If you share responsibility with Parliament for going to war, when something goes wrong there is a degree of feeling that you have been supported in that decision by Parliament, so Parliament shares some responsibility for the outcome. There is, of course, a certain degree of restriction or restraint on prerogative powers in relation to going to war by the budgetary control of the Ministry of Defence. Parliament has the ultimate authority over the budget of the Ministry of Defence, which will no doubt be affected by the operation of going to war.
The difficulty to which the noble and learned Lord, Lord Archer of Sandwell, referred, which I shall put in my own words, is the difficulty of laying before Parliament, at the time when the decision is required on whether to go to war, the information available to the executive on that aspect of the matter. The Foreign Office and security services have been referred to but, in view of my own interest in the matter, I refer also to the position of the law officers. The opinion of the noble and learned Lord the Attorney-General was taken in relation to the Iraq war and a parliamentary Answer was given; then there was a great degree of concern that there was some other opinion that the noble and learned Lord the Attorney-General had given. Your Lordships will remember that there was a good deal of discussion about that in the media.
I asked the noble and learned Lord about the matter in this House, and I said that I thought that if there was any such thing it would be good from his point of view if it was released, and he said—in a very effective put-down, so far as I was concerned—that he thought more of the importance of the state's interest than of his own personal situation. I accept that, of course; the only thing was that in the heat of a general election, it appears that the importance to the nation of keeping it secret suddenly became less important, and it was released by Downing Street in the middle of the general election campaign.
If Parliament is to be involved with responsibility for going to war, it must have full disclosure of that kind of information. It is questionable to what extent that will be practical in the interests of this particular move.
My Lords, I shall explain one matter to the noble and learned Lord. It is probably because of the drafting that it is not clear, but I shall explain how the prerogative provisions are meant to work. First, under Clause 1, Parliament becomes king, rather than the king; in other words, the prerogatives are placed under Parliament. Then what happens is that there is a standstill period of two years during which nothing changes, except when one deals with matters such as treaties and the Civil Service. Then there is to be an oversight committee, which is quite well explained in the Explanatory Notes, which will review the defined prerogative powers and decide what is to be done about them. This is a transitional mechanism to ensure that the executive are given time to explain the prerogative powers, and Parliament is then able to give approval on a particular basis.
It is not the Bill's intention to give a blank cheque to the executive, clothed in parliamentary authority, to exercise prerogative powers. On the contrary, the principle behind the Bill—and I am sorry if it is not clear—is for Parliament to assert its authority but to give the executive time to identify the prerogative powers. I hope that I have clarified rather than obfuscated the position.
My Lords, so far as I am concerned, it is clarification indeed—but I had understood that point, in fact. However, I am grateful to the noble Lord for making his explanation generally available, in case I had not understood it. But the point remains that the theory is that Parliament will authorise and have the responsibility for ultimately authorising prerogative acts. That is the question that I want to address—but my 10 minutes are up, although that includes the noble Lord's intervention, of course.
My Lords, a note at the foot of the speakers' list assures me that if the House is going to rise at four o'clock, I should stop within the 10 minutes, and I certainly propose to do that. These are my concerns about the Bill. I congratulate the noble Lord on bringing it forward. Indeed, as the noble and learned Lord, Lord Archer, said, there are very important issues to be considered, and this is a very good opportunity to consider them.
My Lords, I propose to confine my remarks to those parts of the Bill that relate to the Civil Service and—if I may clarify this for the noble and learned Lord, Lord Mackay—not public appointments, because there is a separate Commissioner for Public Appointments. I do so having recently completed my term of office as the First Civil Service Commissioner and having waited in vain for the Government to announce the results of the consultation exercise that they initiated in November 2004 on a Civil Service Bill.
I begin by thanking the noble Lord, Lord Lester of Herne Hill, for achieving something that the Government seem to find so difficult—the introduction of a Bill that would place the Civil Service on a statutory footing and directly under parliamentary oversight. I also applaud his efforts to strengthen what he calls representative democracy and parliamentary sovereignty.
I strongly support legislation to entrench in statute the key values of the Civil Service and the role of the Civil Service Commission, and to clarify the respective roles of Ministers, special advisers and civil servants. 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, which are neither incompatible nor peripheral to the process of change, are embedded in statute.
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 its enduring values. I am also of the view that the scope of any Bill dealing with the Civil Service should not be too prescriptive or drafted in a way which would inhibit or impede its evolution as an organisation, because one argument against a Civil Service Bill is that it would affect the organisational development of the Civil Service. I take the view that, if you disentangled the two, you would entrench the constitutional position in statute and free the Civil Service to develop as an organisation.
There are five aspects of the Bill on which I would like to comment very briefly. First, 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 politically impartial Civil Service. To some degree this is met by the Bill, in that it provides for the appointment of the First Civil Service Commissioner by agreement with the opposition parties. However, additional reassurance about the commission's independence and political impartiality would, I think, be offered if the Bill also provided that appointment panels for the First Commissioner were chaired by someone independent of government and comprised a majority of people who were independent of government.
Secondly, any Bill must clearly set out the role of the commissioners in ensuring that the key recruitment principle of selection on merit on the basis of fair and open competition is applied to 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.
It is important, however, that the legislation does not prescribe how the commissioners will undertake their function in detail. They need to be firm on principle but flexible in practice. The flexibility inherent in the recruitment code means that the commissioners can respond to changing circumstances and situations without in any way compromising principles. For example, with regard to the principle of openness, additional advice on the use of the internet for advertising posts has recently been incorporated. Generally commissioners want to encourage innovation and experiment within the framework of the recruitment code. I am pleased, therefore, that the Bill supports that approach.
Thirdly, the way the Civil Service code has been promoted by the departments has been inadequate. That has been the case ever since its introduction in 1996. It has often been omitted from departments' induction programmes, and I found that too many staff, new entrants and old hands alike, seemed totally unaware of the values it describes and of what to do should they find themselves being asked to act in a way that is inconsistent with the role of the civil servant. As the noble Lord, Lord Lester, said, work has recently been undertaken on turning the code into something much more accessible and readable, but that is only a start. Against a background of change and greater movement of staff, it is critical that the code is continually promoted, not just as something civil servants turn to when things go wrong, but rather as a living document that sets up the constitutional framework within which they work and the values they are expected to uphold. There is an important role here for the commissioners in monitoring whether departments positively promote the code.
Fourthly, I am concerned that, however well the code is promoted in future, civil servants will still find it difficult to raise issues under the code. At present the commissioners do not have the power to initiate their own inquiries; they have to wait for someone to appeal. I therefore support the part of the Bill that gives Civil Service commissioners the power to initiate inquiries, rather than having to wait for an appeal from an individual civil servant under the code. Finally, I believe it is quite consistent in a statutory framework that provides for parliamentary oversight of Civil Service standards for the commissioners to report to Parliament annually on their work. It is right that they account for their work and are examined on it, and I am glad to see that provision in the Bill.
In conclusion, we all agree that the Civil Service is a public asset. It exists in the public interest, and it is in the public interest that we maintain a Civil Service that transcends the interests of any one administration. We must avoid legislation in this area becoming a political issue, because the issues raised under the Bill affect us in the public interest. When I have spoken in the past, I have recommended that we should set up a joint committee of both Houses that might be established to take forward some of the considerations that would be most appropriate, and avoid it becoming a political issue. I hope the Government will give a clear indication today of when they might bring forward legislation on the Civil Service, or that they might support the noble Lord's Bill.
My Lords, it is of course conventional to congratulate and thank those who bring an important issue to the House, but the work done by the noble Lord, Lord Lester, in producing this Bill was considerable. The effort that has been put into it must receive our gratitude and admiration.
The question we have to ask is: why has no Civil Service legislation been enacted by the Government? For eight years, year after year, we have had promises to bring in a Civil Service Bill. I have been urging the Government to say when that will come, and I have received assurances that it will happen eventually. We know the reality here: they do not want that Civil Service Bill, because it will lay down certain rules that a number of people are not too happy about. But we do want the Bill, because we have seen the decline of the Civil Service over the past few years, which has been a serious matter indeed. The Civil Service has declined from the ideals we maintained, from the time of the implementation of the Northcote-Trevelyan report 150 years ago right up to the past 20 or 30 years, and year after year we have seen that decline continue.
The Northcote-Trevelyan reforms created standards, and not just for the Civil Service. It went much wider than that. Those standards transmuted into a number of official bodies, and even into certain public companies, because there were enormous advantages to introducing them. The last fundamental reform based upon a thorough study was the Fulton report, which brought about a substantial change by removing 1,400 classes of civil servant. In the messengerial class, for example, there were the ranks of messenger, superior messenger and top messenger; there were classes all over the service. We ended that. But, importantly, the report still respected the Civil Service ethos, its abilities and its role of seeing to the efficient and effective running of the country. An important part of the Bill of the noble Lord, Lord Lester, deals with much of that.
The Bill also deals with special advisers, an area where we have seen most important changes over the past few years. The Fulton report supported the use of special advisers as people who could bring experience and expertise into the Civil Service, as well as their political affiliation. That was an advantage to the service. Special advisers played a useful role, and we have seen their numbers increase in recent years. In 1974, as Minister for the Civil Service, I had the task of approving the special advisers' salaries, which ranged from the higher salaries of Nicky Kaldor, Tommy Balogh and even Jack Straw, among others, to a few who received salaries of less than £3,000 a year, which, even with the difference in money values at that time, was pretty low. Still, I had no objection to any of those, so they went through.
Clause 11(3) says that,
"No special adviser may manage, direct or issue instructions to a civil servant in the discharge of that civil servant's public functions".
That is an improvement on the previous Bill, sponsored by the noble Lord, Lord Lester, of
The situation has now changed. In the ninth report of the Committee on Standards in Public Life, Professor Hennessy says:
"the clout, as it were, of the permanent Civil Service advisers is much diminished compared to some of the special advisers".
"the current administration work with special advisers in departments in a way we did not".
That shows how the situation has changed fundamentally from what we had in mind all those years ago, from Northcote-Trevelyan right up to our own time in political life.
Mike Granatt, in paragraph 7.12 of the report, states:
"There can be confusion, and I think this is one of the concerns that arises in times when things do not work well, that the special adviser may become a gatekeeper, and that civil servants do not have access to the Minister to provide advice, they merely become the recipient of instructions, one way or the other".
That is the way that the role of special advisers has fundamentally changed; rather than offering expertise and information, they become rather more prominent in the work of departments.
In paragraph 7.14, the committee recommends that,
"special advisers should be separated out as a category of government servant distinct from the Civil Service and that this should be part of the legislation", which is discussed later on. Those are important recommendations indeed.
My opinion is that no special adviser should exercise power over civil servants. As the noble Lord, Lord Lester, has pointed out, there were 38 special advisers in 1987, and there are 78 now, 24 of whom work for the Prime Minister. That is more than assistance and advice; it is a sort of involvement that we never thought special advisers would have. They should not exercise that power over civil servants. We have been promised again and again over the past eight years a Civil Service Act. We need one to deal with the centralisation of power and to sort out the problems including those of the Civil Service. That is the most important aspect of this debate.
What we have here is a situation where the kind of people who are brought in have greater power over the Civil Service, which means that the civil servants themselves have less. The civil servants are the basis of how governments operate. Of course special advisers have a role, but they should not be between the Government and Ministers and the Civil Service because that diminishes the role of Civil Service members themselves.
Civil servants have difficulty with governments in power for several Parliaments. If it is a short Parliament, they retain their powers. If it is a long Parliament, they become distorted. With a lengthy Administration, civil servants have to modify their independent role. We have had two long-term governments recently and we have seen the effect that that has had on civil servants. Ministers may learn much about government because as they carry out their duties they learn how to handle matters rather better, but civil servants also need to be less dependent on them in how they maintain something of their role as guardians of the public interest. That is the important thing we need to consider today.
My Lords, first, I crave the indulgence of the House for the fact that I will not be able to stay to the end of the debate. I have informed both the noble Lord, Lord Lester, and the usual channels, who have kindly said that they do not object.
I warmly welcome the Bill and almost all the key provisions in it. I share with almost everyone who has spoken the feeling that we owe an immense gratitude to the noble Lord, Lord Lester, for taking so much trouble and bringing the Bill to the House.
It is an important Bill although it is rightly and inevitably limited in scope. By that I mean that it is not in any sense an inevitable step towards a written constitution. Those who have hesitations about a written constitution need not in my view have hesitations about this Bill. I do not think that the Conservatives, whether with a large or a small "C", should be troubled by the fact that it controls the exercise of the royal prerogative. It does not curb powers genuinely exercisable by the Crown, but does control the exercise of powers which are in practice exercised by the Government in the name of the Crown.
I think it is important to be clear that that does not affect powers that need to be exercisable by the Crown itself, which in effect remain the power to dissolve Parliament and the power to appoint a Prime Minister. The exercise of those powers by the Crown is, of course, itself circumscribed by convention. But a residual power genuinely exercisable not on the advice of a Prime Minister is very important to deal with a situation where the result of an election or other political changes makes it unclear who the next Prime Minister should be or a situation where the exercise by a Prime Minister of the right of dissolution may be abused; for example, if he has not really effectively won an election and wants immediately to dissolve Parliament to have another go. It is important that the right to exercise the prerogative should be retained.
The most important but the least spectacular feature of the Bill is to put the Civil Service on a proper statutory basis. It has long been called for, it has been long resisted, and it is definitely overdue. The broad framework set out in the Bill seems to me to be substantial and persuasive. The only particular point that I would single out for comment is the one relating to special advisers, where I not only agreed with but warmed to the points made with great force by the noble Lord, Lord Sheldon, just recently. Clause 11(3) is very welcome in making clear that special advisers may not,
"manage, direct or issue instructions to a civil servant".
That is an area where there has rightly been great suspicion of abuse in recent years.
I would however go further than the Bill currently provides. I believe that it is important to limit the total number of special advisers, perhaps to do so in a flexible way, but to have some parliamentary control in a legislative form on that issue as well. As has been said and shown, there are now very many more special advisers than there were and there are far too many. I very much agree with the noble Lord, Lord Sheldon, that special advisers can be useful and probably even essential in today's world if they perform a unique political role and above all work with the grain of the system. My experience as a Minister was that they had to do that because they were only a handful and unless they secured the confidence of the civil servants they could not actually do the job for the Minister that they wanted. If they become too numerous, as they have become, instead of genuinely performing that role they become an over-mighty elite corps who regard themselves as the guardians of political correctness, and that inevitably threatens the proper role of an independent Civil Service.
Another extremely important part of the Bill is the provision that treaties have to be given parliamentary approval, in the case of the most important ones by the affirmative procedure before ratification. The web of international commitments that we enter into is in today's world constantly getting more extensive and more complex. I would not commend the procedure operating in Denmark whereby the government's handling of every step in negotiations on European legislation is controlled by parliament, but in a democratic society the right to give the ultimate say should be exercised by Parliament. It is not acceptable for a Government to be able to say, as has been known to happen, "We've already entered into an internationally binding commitment and you must therefore now approve it by giving legislative effect to what we have committed ourselves to and you must do whatever is necessary to make it possible for that to happen". That is unacceptable and savours of parliamentary blackmail.
Still more important than the provision on the treaty right is the provision requiring parliamentary approval for direct participation in any war, international armed conflict or international peacekeeping activity. It is more important, but again in my view is fully justified. I understand the difficulty of governments having to disclose all the information upon which they are making decisions but all I can say is that the experience of recent conflicts, and most notably of the Iraq conflict, leads me to the view that the national interest is far more damaged by inadequate disclosure than by excessive disclosure. Indeed, I cannot think of a case where excessive disclosure has ever led to that damage. In practice, of course, a government could not survive if Parliament did not support military action that had already been taken, but it is unreal and savours of blackmail of Parliament for a government to demand support only when British forces are already either engaged or massively committed.
In the case of real emergency the Bill permits the Government to take action without parliamentary approval and has to justify it subsequently. I would go further and require not just a statement of reasons but actual subsequent parliamentary approval even if by then the scales were so loaded in favour of that being given for the reason that I have already mentioned. One of the reasons I say that is that in practice the curious fact is that today's wars seem to be increasingly "voluntary" in the sense that they are not a response to a sudden attack but a conscious decision to take military action in a particular situation. In that situation, parliamentary approval should be a real check. What may be more difficult is the precise definition of "war" or "international armed conflict". I suspect that that may need further discussion in Committee.
Finally, I welcome the proposals to make certain public appointments subject to parliamentary approval by the Public Appointments Committee. The list is actually rather a modest one although I appreciate that the Bill makes provision for its possible extension. I hope that that will be exercised or that there will be amendments even at this stage, including other appointments which are not covered in the present draft of the Bill.
What I do not quite understand is why membership of the Public Appointments Committee provided for in the Bill is confined to Members of the House of Commons while membership of the Executive Powers Review Committee is to be drawn from both Houses of Parliament. It seems to me that it would not be excessively ambitious for this House to be included in the pool from which members of the Public Appointments Committee could be drawn.
I very much hope that there will be cross-party support for the highly desirable reforms put forward in the Bill. I welcome the fact that the new leader of the Conservative Party has nodded very strongly in that direction. I believe that the Bill, when enacted, will significantly improve the governance of the United Kingdom and add a very welcome enhanced degree of parliamentary accountability which is appropriate to today.
My Lords, I thank the noble and learned Lord, Lord Mackay, for his extremely generous good wishes to Sir Menzies Campbell, which I shall give to him when I see him in Harrogate later today. I am sure that the noble and learned Lord, Lord Mackay, will be aware than an earlier Ming dynasty was particularly rich and successful. We look forward to similar success.
On the tributes to the noble Lord, Lord Lester, I can do no better than draw the House's attention to the spread of speakers today. Often when an initiative is taken by noble Lords on one Bench, noble Lords on other Benches are conspicuously absent. The spread of speakers today is very interesting. There are four from the Labour Party, four from the Conservatives, three from the Cross Benches and three from the Liberal Democrats. If you consider the experience of law officers, Cabinet Ministers, permanent under-secretaries and chairmen of the Civil Service Commission, you will see that an extremely rich galaxy of talent and experience is put at the disposal of the House today. In addition, there are one or two speakers, such as the noble Lord, Lord Lipsey, and me, whose main claim to fame is that we were once special advisers.
When I first came to this House, I served on the Select Committee on the public service chaired by the noble and learned Lord, Lord Slynn, and on the Select Committee on freedom of information. However, the battle honour of which I am most proud is that I was also a member of the Cook-Maclennan committee that looked at constitutional reform—the joint committee of Labour and Liberal Democrats before the 1997 election. I am extremely pleased that my noble friend Lord Maclennan will sum up from the Liberal Democrat Benches.
The other thing that I am pleased about is that the author of a statement which I often quote has already spoken today. I refer to the noble Lord, Lord Sheldon, who famously said that the two great gifts bequeathed by the 20th century to the 21st in Britain were the BBC and the Civil Service. We may still have to battle for the integrity of both. Today we are concentrating on the Civil Service.
It is worth remembering the circumstances of Cook-Maclennan. It was a shared analysis by both Labour and Liberal Democrats that our system of government needed radical reform if it was to be fit for purpose in the 21st century. It was the Cook-Maclennan report which gave the radical impulse to the first term of new Labour government after 1997: the Human Rights Act; freedom of information; devolved government for London, Wales and Scotland; PR in devolved government and Europe; the first stages of Lords reform; and the Jenkins commission on voting reform for Westminster. We on the Liberal Democrat Benches still see Cook-Maclennan as work in progress.
By contrast, one gets the impression that the Government now see constitutional reform as a damage limitation exercise. Indeed, it is doubtful whether we would see either the Human Rights Act or the Freedom of Information Act passed today. There is no indication that the Government share either the sense of urgency or the radical impulses which motivated Cook-Maclennan and were reinforced by the recent Power report under the noble Baroness, Lady Kennedy—another voice we miss today.
The concern that motivated Cook-Maclennan, and is reinforced by the Power commission, is of a dangerous disconnect between government and governed. Turnout at elections and public apathy and cynicism, particularly among the young, have reached dangerous levels. Democracies need participating democrats to make them work. Governance at all levels needs the respect and confidence of the governed, yet the Prime Minister in particular seems to be cocooned in a world of unreality.
I make no comment about the Jowell affair; I have great respect for the Minister concerned. I say only this. I remember that Hugh Dalton quit ministerial office because some Budget secrets appeared in the stop press of a London newspaper. When I was at university, we were told that Sir Thomas Dugdale took ministerial responsibility for the Crichel Down affair—an action of his own department of which he was not aware.
Today the Ministerial Code lies in tatters and there is no public confidence in the Prime Minister's stewardship of these matters. Is it any wonder? Advice on key matters affecting probity in governance from the Committee on Standards in Public Life, the Electoral Commission and respected Select Committees of Parliament are rejected or ignored. The noble and learned Lord, Lord Mackay, referred to the cavalier way in which the Attorney-General's advice was first secret and then made public when politically expedient. Last night we had the pre-spin of what the Cabinet Secretary had said on the Jowell affair. Mr Geoff Hoon even appeared on television explicitly saying that the Cabinet Secretary had exonerated Ms Jowell, when in fact his report said no such thing. The whole matter—as has gone on for years—had been pre-leaked and spun to the press with no idea of a Statement to Parliament. We have had internal inquiries followed by exoneration, which give an impression of ultimate responsibility in government that would not pass muster as oversight of a parish council.
There are some good people in the Labour Party and there are still some radical impulses on the Government Benches. But there really is a stench of decay about the Blair administration and its obsession with wealth and celebrity, and pelf and place, which frankly makes one weep. As for the culture of secrecy, rather than being banished from Whitehall, it is safe and well and sitting in the back of various ministerial limos. Hence the need for this Bill, which should have graced the Queen's Speech of a third term Labour Government. Like other Lester initiatives before it, I have every confidence that one day it will see the light of day as the law of the land. As my noble friend Lord Lester has made clear, the proposals on the Royal prerogatives have nothing to do with the powers of the Queen and a great deal to do with the anachronisms and loopholes being used as a fig leaf by Ministers to protect certain of their actions from full parliamentary scrutiny.
A number of Members more expert than I am have talked about war powers, which I will not dwell on for too long. Getting responsibility for war powers, as a number of Members have said, is not the end of the matter. It will always be difficult to assess these matters. Again looking to history, we see that Sir Anthony Nutting, who was right about Suez, had his ministerial career ended, whereas Selwyn Lloyd, who misled Parliament, ended up as Speaker. History has some strange stories to tell. The powers given by this Bill on prerogatives, war making and treaties are all welcomed by those who want to see powers of scrutiny and accountability extended.
Unlike my noble friend Lord Lester, I am glad to see the noble Lord, Lord Bassam, on the Bench. I am sure that we will hear how eager the Government are to have a Civil Service Bill, in spite of the fact that, as the noble Lord, Lord Sheldon, has indicated, all the news from the Downing Street sofa is that we will get one over the Prime Minister's dead body. The noble Lord, Lord Bassam, is the Trevor Bailey of Front-Bench politics. He is a man who can keep his end up and stay at the crease for days on end without scoring or even attempting a run. What worries me is the body language of the Prime Minister. There are the same vibes as those that used to come from time to time from Mrs Thatcher, as she was then—if only he could get more of his private sector chums into government, with a get-up-and-go, can-do approach, all would be well.
The noble Baroness, Lady Prashar, referred to the programme of reform that is now under way. We all welcome attempts to bring greater efficiency and productivity into the public services. We welcome the Government's initiatives to deliver greater diversity to all levels of the Civil Service, not least to permanent secretary level. I was struck by a statement made by Anne-Marie Lawlor, the director of the leadership and development strategy for the Civil Service, who said:
"We know that graduates want to come and work for us because they think we are a good employer, but most importantly they want to make a positive difference to society".
My heart rejoiced at reading that. Some nine years ago, the Select Committee on which I served under the noble and learned Lord, Lord Slynn, concluded that in the British Civil Service there was a distinctive public service ethos, which was massively in the public interest to nurture and preserve. That is the gift that the noble Lord, Lord Sheldon, talked about, which has as its roots the Northcote-Trevelyan principles of political neutrality and appointment and promotion on merit.
Like Prime Ministers before him, the Prime Minister pulls on the levers of power and nothing happens. So in his frustration he packs Downing Street with special advisers staffing a variety of Orwellian delivery units. Across the board, despite some of today's criticisms, most special advisers operate much as they have done since 1974. It is in No. 10 that their powers have been extended, as the noble Lord, Lord Lipsey, pointed out in his evidence to the Committee on Standards in Public Life. The need for the protections contained in this Bill comes from the No. 10 experience. The role given to Alastair Campbell must never be repeated, combining political propaganda with government information as it did.
I agree with the noble Lord, Lord Sheldon, that there are problems from long periods of one-party government. In the opposite direction from special advisers, I believe that neither the noble Lord, Lord Powell, nor Bernard Ingham served the public interest by remaining in their position as civil servants throughout the Thatcher administration. It is wrong when civil servants merge and morph into political appointments. We know that Ministers like to keep friendly faces around them, but it does not help the independence of the Civil Service. We welcome the initiatives on diversity as well as the strengthening of the Civil Service Code under Gus O'Donnell, but we still want the protections of the public service ethos that the Bill would provide. I welcome the suggestion made by the noble Baroness, Lady Prashar, of having a Joint Committee to carry matters forward.
I sniff the whiff of reform in the air. As has been said, Mr Cameron has established his task forces and Gordon Brown stirs like an old grizzly from his winter slumber. The Power report reawakens the spirit of Cook-Maclennan and Ming Campbell is willing to lead the Liberal Democrats from the front as thunderers for reform. Such a mood of broad consensus comes but rarely. Will Mr Blair, ensconced in his winter palace, hear it? I do not know. I hope that today's debate and the granting of a Second Reading to the Bill will be a timely wake-up call to him and that we can move forward to a rich and constructive Committee stage.
My Lords, it is traditional for those in this position in the speaking list to start by making the old joke about everything that there is to be said having been said and not everyone having said it. I may get away with not being subject to that charge today, because on the whole my remarks will run contrary to the main spirit of debate. There is one thing on which I am absolutely at one with the House, and that is in congratulating the noble Lord, Lord Lester, on preparing this fine draft legislation and on initiating the debate today. These are issues of the highest importance where the experience of your Lordships' House has a great deal to offer, and we owe him a great debt of gratitude.
What I am going to say first may sound like damning with faint praise, but it is not really meant to be. There is much in the Bill that will do some good, and there is little in the Bill—with one possible exception that I will come to—that will do much harm, so to that extent I support it. The specific proposal about which I have some doubts concerns the Royal prerogative in matters of peace and war. That proposal has been endorsed by both David Cameron and Gordon Brown, so I am perhaps on risky ground in disputing it, but neither of those two gentlemen has yet been Prime Minister. One or the other—perhaps both—one day may be. Their principal duty if they do attain that office will be to maintain the security of the nation. Would that proposal help in that?
The secret of preserving peace is that a prospective enemy has no doubt that you are willing and prepared to go to war. I wonder whether there are circumstances in which this provision could cast doubt on that preparedness, although I know that there are provisions for urgent action in the Bill. Perhaps a rogue state threatens us. Perhaps the Government's tough stance towards it causes parliamentary controversy. Perhaps its rather inexperienced diplomats misread the situation. Perhaps they think that John McDonnell and Jeremy Corbyn speak for England and doubt that the Government would win a parliamentary majority for war. Perhaps that doubt, mistaken though it would be, would cause them to embark on a fatal adventure. I accept that that contingency is pretty remote, but the cost if it happened would be pretty high. That proposal, which has become incredibly fashionable, deserves more consideration, including by Britain's military and security advisers, before it is passed into law. I say that in passing.
I want to devote my remaining remarks to two premises that seem to underlie the case for the Bill, and on which I am not altogether convinced. One is that an important cause of our current political malaise is inadequate parliamentary accountability. The other is that the solution to this lies in new laws and rules. The rules, for instance, in this Bill are based in statutory codes of practice for civil servants and advisers.
On parliamentary accountability, it is now pretty well the conventional wisdom that it is in decline. I cannot see it. It is a third of a century since I started working in the Houses of Parliament, when I was political adviser to Anthony Crosland. When I look at the changes since that time, parliamentary accountability has not decreased, rather it has hugely increased. I will give noble Lords three examples. The Whips have nothing like the power they had in 1972 when a vote against the Government was a sackable offence. Parliamentary revolt is now permanently endemic—and I welcome that.
On the examination of the Government's policies, the Select Committee system invented by the noble Lord, Lord St John of Fawsley, has been expanded hugely. The committees are much better services, the members work harder, they have more research behind them, the chairmen are respected and rewarded and they kowtow to government less and less.
Meanwhile, your Lordships' House, which, shortly before I started work in this place, was virtually moribund, has become—not always to my taste—more assertive. Why is this evident growth in parliamentary accountability so frequently overlooked? I think the answer is that it has gone pari passu with another much less desirable development; namely, the overweening power of the media, a matter again highlighted this week by the witch hunt against the culture secretary. Parliament is holding Ministers to account, but this gets little attention when they are suffering a far worse ordeal by the media. I fear that the effect has been one that we have rightly deplored in this debate—namely, government spends too much time on spin, which deals with the media, rather than on substance, which deals with parliamentary accountability. But I am more concerned that we do something about the media and the spin so that the parliamentary scrutiny, which has developed for the better, shines out as the beacon at the heart of making the Executive accountable.
My second doubt concerns the place of rules and regulation in enforcing standards in public life. Again this week that has been highlighted by the Mills/Jowell affair. Looking at it, there seems to be something of a pattern. Rules are introduced—this Bill, that code and a scrutiny committee. Yet, despite that, when a real live problem arises, the rules often do not seem to cover the matter. You would think that that would cast some doubt on whether rules are a good way of dealing with this stuff. But it does not. It creates a demand for new rules. The Nolan rules are no longer good enough for public appointments, so we need some more. Ministerial codes do not deal with Minister's spouses. If we have them for Minister's children we will need them for their ex-wives and second cousins twice removed and so on. In each case, this extension is argued for by the press and by eminent bodies like the Graham Committee on Standards in Public Life on the ground that it is essential to public confidence. If rules were the answer to restoring public confidence, the public would never have been more confident in Parliament than they are now. The accumulation of rules over the past couple of decades has been great. It has not done anything for public confidence. The public seem to think that if politics need all these rules, it must be a dirty business, which in my considered view in this country it is not.
I apply that with a special force to the constant attempt to design new and stricter rules to special advisers, of which group the noble Lords, Lord Lester and Lord McNally, are distinguished former members and I was rather less distinguished. I still feel that we are trying to shove special advisers into boxes which are appropriate for civil servants. I know that the noble Lord, Lord Lester, has tried to avoid that by his references to impartiality not being the necessary quality. When I read the special advisers' code, I wonder whether any special adviser who took it literally would be able to do the job his Minister required of him. We had far fewer such rules when we were special advisers, but I think we had a better idea than some of the boys today of what behaviour was acceptable.
My concluding and perhaps central point is that, in general, rules do not determine outcomes, although they can help in doing so. Rules are but a part of something wider, and that something is culture. What is going wrong, in so far as anything is going wrong with our system, is down to a laxer culture largely generated by the culture of the media, which no longer seem to relate to the realities but solely to witch hunting. That is what is causing our problems. There is only one kind of regulation that ultimately works; that is, self-regulation. Rules can play only a relatively restricted part in creating that self-regulation. The culture of government is the most important thing and needs the most urgent attention.
The Bill of the noble Lord, Lord Lester, welcome though most of it is, is not a substitute for appropriate culture changes, nor is it a panacea. I am absolutely sure that the noble Lord, Lord Lester, knowing him as I do, would not claim otherwise.
My Lords, one of the advantages of yielding to a request from a colleague to give up one's place in the list of speakers is that you find, particularly if it is the noble Lord, Lord Brittan, that he has said everything that you want to say and you can get away, therefore, with being a lot more brief, which is always welcome in this House. I cannot, however, possibly neglect to say that I have admired enormously, as have all the speakers who have addressed your Lordships' House today, the assiduity in the drafting and the thoroughness and the care that has distinguished the work of the noble Lord, Lord Lester, in bringing forward this Bill. It is long overdue, for reasons I will touch on. It is enormously valuable because it has, as my noble and learned friend Lord Mackay of Clashfern said, opened up for us a means of discussing important issues.
The Bill resembles, if you like, a multi-barrelled rocket launcher. Each of its missiles is separately targeted, but each is intended to detonate within the area of the overall objective. That overall objective is the extension—I was going to say the preservation—of parliamentary control over the Executive. Within the time available, I want to deal only with its provisions for the prerogative and then with those for the Civil Service and those for the special advisers—that is, Parts 1 and 2. The Bill is surely implementing a reform whose time has come when it seeks to bring on to a statutory basis those residual prerogative powers that, by a process which we all know, over the centuries have become delegated to Ministers and exercisable by them.
The force of the argument for that reform can be put in this way. The stability of our country depends on our consent for being governed. Of course, governments cannot please all of us all the time—governments cannot even please all of us some of the time—but we put up with that, and are used to it, provided that one condition and one only is satisfied. That is that the Executive of the day is dependent on retaining the confidence of a free Parliament, a Parliament in which our dissent can be fairly, freely—even, on occasion, decisively—heard. That is the key condition for our consent to being governed and it is entirely absent in the far from negligible powers that I am discussing. They are conveniently listed in the Explanatory Notes at paragraph 12. They are far from negligible, as has been mentioned in many speeches today.
The power that has attracted most attention in this debate has been the power to commit British troops to conflict situations. The importance of that issue has been brought before us many times recently—in particular, by the commitment to participate in the Iraq war. It is not necessary to go into the merits or demerits of the lawfulness of that action on the part of the Executive. I happen to think that, on balance, the Attorney-General's argument was right; although the alternative arguments were entirely respectably advanced. I said that at the time and I hold to that view, but it is not necessary for us to determine that to be able to see that immense interest, to put it mildly, has been taken in the country in the fact that troops can be committed to conflict without prior parliamentary authority.
I do not forget that, in the case of the Iraq war, the Government accorded to the House of Commons a substantive Motion and secured support for it. I also think that it is probable that, in future, it will be politically impossible for any major deployment of that character to take place without prior authority accorded by Parliament. But that does not decide the issue. It is not enough to say, "Oh well, it will always happen anyway". In the interests of the military, in particular, it is now necessary for there to be a statutory requirement of the character proposed in the Bill. I am of course concerned, as anyone must be, by the point put forward by my noble and learned friend Lord Mackay about the difficulty of bringing the whole case before Parliament on grounds of intelligence, and so forth, but I am rather taken by the point made by my noble friend Lord Brittan—that the dangers of holding back information appear to be greater than those of making it public. However, we must take that point seriously and in Clause 3(3)(b), the Bill provides for an emergency where the Prime Minister certifies that action has had to be taken in advance. That needs to be carefully examined and, I think, goes some of the way towards providing the solution to the problem posed by my noble and learned friend.
I turn to how the Bill deals with the Civil Service. So much has been said about that in a very approving tone that it is not necessary for me to take much time about it, save to express my warm welcome. It is absurd that the structure, organisation and management of the Civil Service, whose characteristics are so important to the maintenance of a free, democratic government and society and the rule of law, can be changed under the prerogative, with all the limitations on parliamentary scrutiny and judicial supervision that that carries with it today. I wonder why the Government have not brought forward that provision. The noble Lord, Lord McNally, took us through the history.
I hope that the noble Lord, Lord Bassam, from his impregnable position at the crease, will now tell us whether the Government will give the provision a fair wind and, if not, why not. After all, a statutory footing for the Civil Service has been recommended since Northcote-Trevelyan in 1853, so there has been plenty of time to think about it. The Government say that they have thought about it. Two years or more ago, the Deputy Prime Minister said that a Bill would be enacted. What has happened to it? Why was there nothing about that in the Queen's Speech last May?
Lastly, as for special advisers, that burgeoning breed needs, with the greatest respect to the noble Lord, Lord Lipsey, whose speech I listened to with my usual admiration, to be brought under statutory control. The worst example of the dangers attending the current system is when the Prime Minister gave power to special advisers to give instructions to civil servants telling them what to do and how to do it. I am very glad to see a specific provision in the Bill making that beyond the pale.
The Bill is long overdue. I give it the warmest of welcomes and, as another noble Lord just said, I look forward to a very rich Committee.
My Lords, perhaps I may intervene briefly before the winding-up speeches. I am grateful to the noble Lord, Lord Maclennan, for allowing me to do so. I should have been sad not to be here to represent those Members of your Lordships' House who have had long careers in the public service of government. I add my congratulations to those that have already been expressed to the noble Lord, Lord Lester, on his introduction of the Bill and, if I may say so, on the skill with which he has drafted it. That is no greater than I would have expected of him, but it still needs to be recorded and recognised.
When we come to consider the Bill in Committee, if we are allowed to do so, I hope that we shall look closely at the arrangements proposed for declaration of war or committal of British troops to war and for ratification of treaties. Clearly, in the Iraqi situation, there was a lot of parliamentary debate and, in the event, there was a parliamentary vote. However, there may still be circumstances in which the Government must go to war or declare war without there being a chance to seek parliamentary approval before doing so. The Bill makes provision for that; we shall need to consider whether that provision is adequate. On treaties, it is important that when the Government sign a treaty they commit the nation to the provisions of the treaty. There should be an understanding among the other signatories to the treaty that that commitment is given in good faith and will be honoured. We need to ensure that provision is made for that.
As regards the Civil Service parts of the Bill, your Lordships will not be surprised to hear that I am entirely happy that civil servants should be required to act with honesty, integrity, impartiality and objectivity and that it should be a ministerial duty to uphold the independence and impartiality of the Civil Service. Indeed, I would go further: Ministers should be required to respect those qualities. I also strongly support what is proposed for special advisers and what has been said on that subject in previous speeches.
I shall not discuss the other parts of the Bill, because it is my duty to be brief. I shall say only that the need for such a Bill stems from a gradually increasing lack of trust in government. We have seen that lack of trust again this past week. I was relieved when the decision about the Secretary of State for Culture, Media and Sport was taken openly and advisedly by the Prime Minister, not by the Cabinet Secretary. It seems right that the Prime Minister accepts the responsibility. If there were trust in the Government's willingness to observe the principles that underlie this Bill, we would not need legislation. If we try to tie up the Government with increasing regulation, whether by monitoring by Parliament, by parliamentary committees or non-parliamentary bodies, governments will always be tempted to see whether they can find some way around it and do what they want to do that escapes the definitions in the Bill.
That is why I have not been an enthusiast for a Civil Service Bill, although I recognise that my successors, other than the noble Lord, Lord Turnbull, have been. If a government were, on appointment, to issue a White Paper that committed them not only to the principles but to some of the details of the Bill, and that could be regarded as what was sometimes called a solemn and binding declaration of governmental purpose, and if that purpose were ratified and endorsed by the Opposition of the day and when that Opposition came into government, I for my part should be content to live with that and spare the need for legislation, because it would put responsibility where it belongs and would lay the foundations for an improvement in the trust that Parliament and the public should have in the government of the day.
My Lords, I am very happy to have been able to hear from the noble Lord who has just spoken, not least because of my recollection of my first encounter with him in 1974, when he conveyed to me the extraordinarily welcome news that I was to be appointed to the then government in the most junior capacity imaginable. I have followed his utterances with enormous interest ever since.
In speaking as the noble Lord did of the situation that has given rise to this Bill and the lack of trust, his words brought back to me a conversation that I had with Robin Cook, 48 hours before he died, walking around my garden on the north coast of Scotland. Far from taking pride in the measures of reform which he had been so instrumental in promoting—he not only created a policy programme for the Labour Party before it entered government but, as Leader of the House of Commons, he sought to place at the forefront of the government's programme changes that would make the House of Commons more effective in holding the Executive to account—he was still concerned for the future and feared that the lack of trust in government was growing. I wholly accept what the noble Lord, Lord Lipsey, said in his extremely interesting and thoughtful speech about the press that more needs to be done by cross-party agreement. That has been characteristic of today's debate, which has been of an unusually high order, although this House, when it stands back, is often capable of delivering such sound sense as we have heard on both sides.
I, too, begin by expressing the enormous debt which those of us who are privileged to contribute to this debate feel we owe my noble friend Lord Lester of Herne Hill for the extraordinary work that he has done in introducing the Bill in such a remarkably finished condition and for his efforts to explain its possible operation, but for the long years of patient incremental work advocating reforms of the constitution that might be acceptable at the time, pushing out the debate ever further forward and giving those who have concerns the ammunition and the routes ahead to develop the process of reform. It has been a remarkable life's work. My party and, I believe, all parties are immensely indebted to my noble friend.
I shall allude quickly to the one measure in the Bill that has not been touched on; the reference to enabling the ombudsman to take up matters by direct approach in parallel with the provision that allows Members of Parliament to make approaches. It has been discussed in this House before. It is a sensible proposal and, as one who introduced a Private Member's Bill to enable the local government ombudsman to be set up with just such powers, I hope that the Government will not regard it as seriously controversial and that the Minister will indicate that it will be acceptable in principle.
The debate has focused mostly on what might be regarded as current business, although it is curiously difficult to embrace this business—that is, the Government's intention to introduce a measure to place on a statutory footing the independence and promotion on merit of the Civil Service that have characterised it in the past. I know that my noble friend would have preferred not to have had to introduce that measure. It does seem pre-eminently to be a matter for the Government, and one on which they have been advised by the noble Baroness, Lady Prashar, in her role as the First Civil Service Commissioner, and by Sir Alistair Graham, chairman of the Committee on Standards in Public Life, and his predecessors. It has been supported, I believe, on all sides. It has had the powerful support of the Civil Service unions and many senior figures in the Civil Service. It seems to be almost beyond controversy, and it becomes very hard to understand why there is such a blockage. I am bound to say that those who have pointed the finger at No. 10 seem to be doing nothing less than finding where the culprit truly resides.
I wholly agree with my distinguished leader, my noble friend Lord McNally, that the Prime Minister apparently regards this as something that will curtail his freedom to act in an almost extra-constitutional fashion to fit his discretionary powers to the needs of the moment in a way that damages the public perception of governance. I was impressed by the passion which the noble Lord, Lord Sheldon, brought to that consideration, speaking as he does from long experience in government and, in his role as chairman of the Public Accounts Committee, of scrutiny of government, with a real understanding of the real issues. At this stage in the debate, I can add only an appeal to the noble Lord, Lord Bassam. If he is not able to do more than play a dead bat today, will he take back to his colleagues the honest sense of this House, which has been expressed by all speakers, that this matter will not brook further delay? Eight years is enough time; let it suffice. The time has come for a decision.
Encouragement is to be found in recent speeches by Mr David Cameron and Mr Gordon Brown about the need for constitutional reform and, in particular, in what they have had to say about Crown prerogative. The desire to establish that the powers exercised in the name of the Crown by the Executive are in fact drawn from a popular mandate expressed by representative parliamentarians is surely in keeping with the mood of the times. It is not easy to rebuild popular trust in our constitutional processes if it is to be accepted, on a continuing basis, that the great powers of war and peace are exercised by heads of government—and it increasingly appears that that is so—by virtue of an historical trickle-down from the Crown. If we are trying to speak to the public, and to young people, about how our constitution works, and if governance is based in democracy, then we have to address that. It is not simply pettifogging attachment to rules or the belief that rules and regulations are salvation. It is about creating the very ethos that the noble Lord, Lord Lipsey, so strongly advocated. We cannot do that without the full understanding of the press, but the defence—the mere explanation—of the historical basis for the exercise of those powers is not compelling in the world in which we live.
It would enable the parliamentary part of our governance to act more effectively in scrutiny and oversight if we set these things out in statute. My noble friend Lord Lester has attempted to explain in some detail how he would deal with the obvious difficulties, such as that eloquently pointed out by the noble and learned Lord, Lord Mackay of Clashfern, that governments might not be able to provide Parliament with all the information. There is some merit in the approach that my noble friend has taken in attempting to deal with issues of that sort, though I was greatly attracted by a simple legislative proposal advanced about a year ago by Adam Tomkins, the John Millar Professor of Public Law at the University of Glasgow. Referring to the parliamentary prerogative, he suggested that the simplest solution—which would certainly concentrate people's minds—would be for Parliament to,
"pass a Prerogative (Abolition) Act. The Act should contain two sections. Section 1 should provide that 'all prerogative powers shall be abolished' and section 2 should provide (with a nice touch of irony) that 'section 1 shall come into force one year after this Act receives the royal assent'. That would give the government one year in which to introduce legislation that, when passed, would confer on the government such powers as Parliament considers it needs in place of its former prerogative powers".
That would certainly pass the buck from us here. However, I think that the approach of my noble friend Lord Lester is the one that will commend itself. Indeed, it has done so in this debate.
I shall conclude by addressing an issue that goes beyond the immediate ambit of the Bill, which is how we take these matters forward if we find that we cannot make progress here. I hope that the Bill will make progress into later stages of discussion so that the arguments are better teased out, heard and reported. None the less, we have to accept that these matters require popular involvement, cross-party discussion and the full interplay of Parliament in that process. I commend for the attention of the House the process that was followed in Scotland in considering devolution for the long years when it was not being discussed and during which forward movement was impossible. I refer to the establishment of a constitutional convention to enable discussions to be continued. It would involve parties of all political persuasions and some interests, such as the Church, the trade unions, industry, and other bodies that are particularly interested in this, including the sort of people who were so helpful in the POWER inquiry. It would be a way in which we could systematically seek to advance these powerful and much-needed reforms. I conclude by commending such reforms to this House. I hope that the Bill will progress.
My Lords, I shall join in all the remarks that noble Lords have made about the arrival of the Bill in this House. I, too, congratulate the noble Lord, Lord Lester of Herne Hill, on introducing it. It has served two important purposes. First, the Bill, in itself, manifests the noble Lord's characteristic blend of industry, intellect and—dare I say it—political shrewdness. Secondly, the timing of the Bill is a powerful reminder to the Government that there is unfinished business in relation to Civil Service reform; business which has been long-heralded, but has remained undelivered. One of the responses that I hope the Minister will give is an explanation of why that is so.
As noble Lords know, the leader of the Conservative Party, the right honourable David Cameron, made a speech on
"I believe the time has come to look at those powers exercised by Ministers under the Royal Prerogative. Giving Parliament a greater role in the exercise of these powers would be an important and tangible way of making government more accountable".
Those remarks were made on the day that a committee, under the chairmanship of the right honourable Kenneth Clarke, was established to take evidence on these matters. That both helps and hinders me in speaking from the Opposition Dispatch Box. It helps me because I can express broad sympathy for the objectives of the Bill; but, on the other hand, I am unable at this stage to endorse every single clause and subsection.
The noble Lord, Lord Lester of Herne Hill, was right to concentrate on the control of prerogative powers and not to seek to raise questions about their extent. Quite apart from the merits of that, the better targeted the Bill, the more likely it is to succeed.
There is a very important gap in the way that we as a nation can control prerogative powers in the context of what the judges are doing. In recent years, it has often been the case that the judiciary has been the most effective means of containing Ministers' powers. Indeed, it has done so to such a degree that it has, from time to time, come under quite sharp criticism from government Ministers.
However, the role of the judiciary in relation to prerogative powers has been, if anything, in the reverse direction. Although the judiciary has accepted that it has control over the exercise of the Royal prerogative as a matter of principle, on the two fundamental issues with which we have today concerned ourselves—the decision to go to war and the making of treaties—in the 1985 case, Council of Civil Service Unions v The Minister for the Civil Service, the court unequivocally said that it would not seek to examine the exercise of the prerogative in those areas. So if the courts have declared themselves functus officio, Parliament clearly has a particularly heavy responsibility in relation to these powers.
I suspect that, unless the Minister has undergone a magic transformation from Bailey to Compton, he will tell your Lordships that there is no problem here. The Government have the power to take decisions under the prerogative at the beginning; and Parliament has the right to question that exercise at a later stage. Indeed, Parliament can, if it wishes—and thinks that the exercise of the prerogative has been so abused—seek to censure the Government for it.
It is easy to dismiss that argument outright; but it is worth reflecting on two matters that have been raised in this debate: one by the noble and learned Lord, Lord Archer of Sandwell; the other by my noble and learned friend Lord Mackay of Clashfern. The noble and learned Lord, Lord Archer of Sandwell, rightly reminded your Lordships that something that initially looks like quite a good idea frequently turns out to be quite a bad one. Making an early judgment is often disadvantageous to the person making it. If you couple that with the reflection of the noble and learned Lord, Lord Mackay of Clashfern—that, in undertaking a scrutiny role on the prerogative, Parliament must be aware of the dangers of being implicated in the Government's decision—what I think the Minister is going to say might not look quite so silly. While Parliament must find ways of exercising control over the prerogative, it must be careful not to be implicated in decisions which it later chooses to repudiate.
My Lords, I am grateful to the noble Lord for giving way. Does he accept that, in relation to the requirement of parliamentary authority for treaties, by the time the question of ratification arises, it will be known to what the treaty commits us? It is not giving the Government a blank cheque.
My Lords, I am just going to deal with that. It seems that the situation for military decision-making on the one hand, and of treaties on the other, is quite distinct. The noble Lord, Lord Lester of Herne Hill, was wise to include Clause 3(3)(b) in his draft Bill, because there will clearly be circumstances where the Government are receiving information which it would be unwise to put into the public realm at that time, yet which will compel them to take decisions quickly and authoritatively before Parliament can be informed of the basis upon which those decisions are taken. My noble and learned friend Lord Mayhew of Twysden made that point with particular authority; but a number of your Lordships have also made it.
The position of treaties is quite different. I say with great respect to the noble Lord, Lord Lester of Herne Hill, that, here, I do not think that his Bill goes far enough. The crucial moment for binding the Government internationally is the signing. Once the treaty is signed, there is little a Government can do to change it, unless they repudiate their international responsibilities. It must, therefore, follow that, if Parliament is going to have a role in shaping the outcome of a treaty negotiation, that must—to put it rather crudely—kick in before the signature stage.
Scrutiny of treaties is different from scrutiny of acts over which the Government have complete control. The Government will be negotiating as one of a number. They will never be able to guarantee the outcome that Parliament wants. That is understood; and Parliament requires much greater flexibility in scrutinising treaties than it would in scrutinising ordinary legislation. Nevertheless—and I say this entirely personally as I in no way wish to bind the Opposition to this proposal—I would like to see, at the initial stages of negotiation, the Government coming to Parliament to lay before the House their negotiating objectives; not in detail, but in broad terms. I would like to see, in the course of negotiations, the Government coming back to a committee from time to time, to let it know how those negotiations are going on. Some of the sessions of that committee will inevitably have to be in camera; but the process will develop a degree of confidence between the Government and Parliament which should, by the time the Government come to sign the treaty, mean that they can do so confident that it will have the House's endorsement.
I accept that, if one has an over-elaborate and intrusive role for Parliament at these stages, I may run into the difficulties mentioned by my noble and learned friend Lord Mackay of Clashfern. Nevertheless, at the moment, we know absolutely nothing about treaties until it is too late to do anything about them. I think particularly of the extradition treaty between the United States and ourselves; or, more broadly, the European arrest warrant. The House was presented with a fait accompli on matters which were absolutely fundamental to the human rights of individuals. Had we had the opportunity to deal with these matters in the course of the negotiations, I am convinced that there would have been a completely different result.
The noble and learned Lord, Lord Archer of Sandwell, prompted me to consider this matter. I have now done so. If he disagrees with me, I nevertheless hope that he agrees that I have given it some consideration.
The issues which have, on balance, dominated the debate today are those of the Civil Service. I endorse the idea of a Civil Service Bill, and therefore endorse what the noble Lord, Lord Lester of Herne Hill, has done, generally, in his Bill. We were all, as we always are, impressed by the speech of the noble Lord, Lord Sheldon. I find it hard to disagree with anything that he said. Perhaps on one matter raised by the noble Lord, Lord Brittan of Spennithorne, I am inclined to support the idea of a fixed upper limit for special advisers, rather than some other solution. Apart from that, I think everything that the noble Lords, Lord Sheldon and Lord Lester of Herne Hill, said about the kind of Civil Service we want in the future—the relationship of permanent civil servants with special advisers and the restraints which should be placed on special advisers—are extremely welcome.
One matter which was not mentioned this morning was the relationship between the Civil Service and consultants. We all know that there has been an explosion of expenditure on consultants in the past 18 months to two years. There have been various theories advanced as to why this has been so, one being that, to the extent that we seek to contain the growing numbers of civil servants, there will be a strong temptation, when work has to be done, to farm it out.
However, the scale of the increase of expenditure and the rates that are paid to those consultants is a matter that needs serious consideration and, perhaps, should be included in the Civil Service Bill as well. After all, a consultant does not operate under the same ethical system as a civil servant; yet his views will be considered by Ministers. There ought to be some measure of control in the manner in which this process operates.
That part of the debate which related to the overall culture of the Civil Service was extremely important. The noble Lord, Lord Armstrong, referred to trust, which, in my submission, blends into culture. In a culture of trust, you do not need all these infernal rules that we now have to apply in relation to almost everything that we do.
I, like the noble Lord, Lord Maclennan, thought that the noble Lord, Lord Lipsey, made an extremely thoughtful speech. I was not entirely convinced by his conclusions about the uselessness of rules in the light of the change of culture. However, the difficulty in the relationship between rules and culture is very important. As culture changes and rules are regarded as a nuisance, there is a temptation to produce more rules to deal with the growing difference between culture and rules. We will therefore have an endless series of rules and an endless series of tireless efforts to get around them.
An important component to the solution of that problem has not yet been mentioned. It is one that is entirely, in a sense, in the hands of your Lordships' House. We need to consider in your Lordships' House—it would be true of another place, although it is not for me to suggest it—how to improve the weapons that our parliamentary committees have at their command to get at what is really going on behind the curtain. I would like to see the power to take evidence under oath in order to get at a particularly factual situation which is, as yet, obscure, and the power to subpoena both documents and Ministers. These matters should be considered soon by your Lordships' House.
I have not quite devised or divined how to achieve that as yet. But, parallel with the progress of the Bill put forward by the noble Lord, Lord Lester of Herne Hill, I would like to see serious thought given in your Lordships' House to how we can make our parliamentary committees really get at what is going on behind the scenes in any particular area which we think needs investigating.
As so many of your Lordships have said, this has been a debate of remarkable high quality—all the more enjoyable by the many shafts of wit.
My Lords, I am very pleased to respond to the noble Lord, Lord Lester, in today's Second Reading presentation of his Bill. Like all Members of your Lordships' House, I, too, am a great admirer of the noble Lord, not least because of his persistence, but also because of his ingenuity in bringing forth a whole range of measures, many of which find their way on to the statute book over time.
There is no doubt that it has been a very illuminating and broad-ranging debate, which has had a rich cast list adding different perspectives and thoughts to it. I am very grateful to the noble Lord, Lord McNally, as ever, for drawing the attention of your Lordships' House to the fact that I am viewed in some quarters as being the Bailey of the Government's Front Bench. It is a flattering description—Bailey was a splendid cricketer. He was an all-rounder, and an Essex man like my good self. One thing that I warn the noble Lord, Lord McNally, is that although I might not be a Bailey, several hundred batsmen have found to their cost that I have got a nifty swing to my bowling.
The main focus of the debate has been on two main areas—the Royal prerogative and the Civil Service, but, more particularly, the role and position of special advisers. I will come, of course, to those issues. I must give one further congratulation to the noble Lord, Lord Lester, at this early stage: he has certainly brought the Bill before us at a time when these issues are very much at the forefront of debate in our country. It is well timed this particular week when the power to the people report has been so well received and broadly commented on for its contribution to that debate.
In accordance with the conventions of the House, the Government will not seek to oppose this Bill being given a Second Reading, but we will want to make clear our position on all the major issues. Your Lordships can expect that we will not necessarily be in entire agreement with the conclusions that the Bill draws and the conclusions that the noble Lord, Lord Lester, will draw from that.
It would be right to turn, first, to one of those areas of the Bill which brought forward very thought-provoking and interesting comments; that is, prerogative powers. I was grateful for the careful way in which the noble Lord, Lord Lester, set out his views on that, which helps us to focus carefully on complex matters. In devolution terms, we recognise that the Bill deals predominantly with reserved matters. However, the Government believe that those provisions dealing with prerogative powers touch on devolved matters and would trigger the Sewel convention. They would require the consent of the Scottish Parliament.
Against an absolute standard of democracy, the prerogative might seem, as the noble Lord, Lord Lester, described it, something of an anachronism. However, in the Government's view, it continues to serve us well. It allows us to balance flexibility and Parliament's right to scrutiny. The prerogative, as with anything else, can be limited or varied by statute. It is not immune to parliamentary sovereignty. Numerous powers once exercised under the prerogative are now subject to statutory regimes either through particular amending statutes or in Acts of Parliament with more general application.
Therefore, the question we must ask ourselves is whether recasting elements of the prerogative within a statutory regime improves the quality of our democracy and constitutional arrangements. It is also worth recalling that whether or not Ministers can exercise their prerogative powers without the consent of Parliament, they are in fact accountable to Parliament and the public for their decisions and actions, regardless of whether those decisions are taken under the prerogative or under statutory authority. Powers exercised under the prerogative are not a means of avoiding parliamentary scrutiny and accountability. Furthermore, and notwithstanding the development of judicial review, the courts are reluctant to interfere with the exercise of the prerogative where this relates to high policy. The courts have distinguished between acts involving matters of high policy at the top end of the scale of executive functions under the prerogative and matters of administrative decision where we can expect more judicial scrutiny. The former category would include the power to deploy the Armed Forces. I would argue that such a decision is ultimately a matter for politicians, not the courts. However, putting this within a statutory framework could mean that the courts would interpret decisions taken under the relevant provisions.
In the Government's view, the prerogative is thus a well established part of our constitutional settlement. As the Commons Public Administration Select Committee acknowledged, it offers much-needed flexibility to govern and gives Ministers executive powers enabling them to react quickly in possibly complex and dangerous circumstances, a point noted in the debate in particular by the noble Lord, Lord Armstrong. The Government therefore continue to believe, as set out in their response to the Public Administration Select Committee's report in July 2004, that it is often possible to make out a case for a transfer of prerogative powers to a statutory framework, but that this is best done on a case-by-case basis. Indeed, I was rather drawn to the acute observation of the noble Lord, Lord Kingsland, that the way in which the prerogative is exercised might, on reflection, not look so silly.
Many comments made in the debate focused on the exercise of the prerogative and war powers. Noble Lords will be aware that the use of the prerogative by government to deploy the United Kingdom's Armed Forces is currently the subject of an inquiry by the Constitution Committee. The Government have already reiterated their views in a memorandum to the committee and Ministers will shortly be appearing before it in order to discuss the Government's position in more detail. As the Government argued in their memorandum to the committee, they remain of the view that while a government could seek to deploy the Armed Forces on operations under prerogative powers without the support of Parliament, such an eventuality is theoretical rather than real. As the noble and learned Lord, Lord Mayhew of Twysden, described so accurately, a government draw their authority in essence from their ability to continue to command not just a majority, but authority in the House of Commons, so they must maintain the confidence of the House and the electorate if they wish to continue to hold office. They must therefore take account of and be sensitive to the views of Parliament at all times if they are to continue to hold that confidence.
Moreover, the Government have given repeated assurances that Parliament will be given an opportunity to debate and scrutinise decisions about the deployment of British forces in armed conflicts overseas. In that context, perhaps it is worth quoting the comments of my right honourable friend the Prime Minister to the Liaison Committee in January 2003. It stated:
"I cannot think of any circumstances in which a Government can go to war without the support of Parliament, so I do not think it is real. I think you can get into a great constitutional argument about this, but the reality is that Governments are in the end accountable to Parliament, and they are accountable for any war that they engage in, as they are for anything else".
In these circumstances, a formal requirement to consult Parliament, especially one in legislation, is unnecessary, while a requirement to hold a debate in advance of deployment could prejudice the Government's ability to act swiftly to defend national security. It could damage operational effectiveness by providing information about the possible disposition of the Armed Forces to the forces they may find themselves facing, and could lead to difficulties in defining what constituted a deployment requiring the Government to consult Parliament. My noble and learned friend Lord Archer of Sandwell drew this point to the attention of the House and described some tragic circumstances where lack of flexibility might inhibit important deployments.
Beyond that, as I said in setting out the Government's position in relation to the prerogative in general, putting in place a statutory framework risks involving the judiciary in hearing cases on the legality of deployments. So the Government are firmly of the view that deployments of the Armed Forces are decisions for Ministers. Ministers will then be held to account to Parliament and the public for their decisions and actions.
The noble Lord, Lord Kingsland, focused much of his interest in this debate on the issue of treaties, which I believe to be an important element. As the noble Lord observed, the making and ratification of treaties is one of the principal uses of prerogative powers in relation to foreign affairs. The Bill contains a number of provisions that would fundamentally affect the exercise of authority in the conclusion of treaties by the United Kingdom and is therefore a matter of some significance. Noble Lords will be aware that we have been consistent in saying that we remain open to considering ways of enhancing the scrutiny of treaties by Parliament. That remains the case today, but some of the key provisions of the Bill go well beyond that.
The proposal is to 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 treaty that is subject to such ratification. The number of treaties involved is substantial: more than 300 have passed through the current Ponsonby rule procedure since Explanatory Memoranda were introduced at the suggestion of the noble Lord, Lord Lester, in 1997.
We have already taken a number of steps to improve the efficient and effective scrutiny of treaties by Parliament. I argue that point because it is rather contrary to what the noble Lord, Lord Lester, asserted. For instance, we have widened the scope of the Ponsonby rule 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. We have also given an undertaking that on all treaties involving major political, military or diplomatic issues, we will normally provide the opportunity for a debate if the Select Committee and the Liaison Committee so request. Both the text of each treaty and its accompanying Explanatory Memoranda, which bring out the treaty's salient facts, are already made directly available to all Members and, more than that, are published openly on the Internet when they are laid. So that information is already in the public domain.
My Lords, given all the real improvements which the Minister has referred to, does he accept that the parliamentary scrutiny of treaties beyond European Union legislation should be no less intrusive and well informed than the scrutiny of European Union legislation? Is there any reason in principle why Parliament should not have as good scrutiny powers beyond the European Union for important general treaties, as they do within the European Union?
My Lords, I agree that scrutiny is very important. The improvements which the noble Lord acknowledges provide a level of scrutiny which is not far out of kilter with what the noble Lord has described.
In responding to the fourth report of the Public Administration Committee in another place, we said that we would reflect further on the committee's recommendations on treaties, many of which were similar in broad outline to those proposed in the Bill, so there is further scope. Having so reflected, we feel that there may be scope for considering the placing of the Ponsonby rule procedure, currently a constitutional convention, on a statutory footing to increase the clarity and enforceability of the rule that government bring such matters before and to the attention of Parliament. Any change would require wide consultation right across government and there are no guarantees that it would be supported. But we intend to undertake such consultation shortly, which I am sure the noble Lord will welcome, and will inform the House of its outcome in due course.
The Bill makes reference to overseas territories; it would have implications for the making of prerogative Orders in Council. We believe it could have a negative impact on our relationship with overseas territories. There are differences in the way in which constitutional changes are handled in the territories. All the territories' constitutions are made or amended under statutory powers except those of Gibraltar and the British Indian Ocean territory which are made by Orders in Council under the prerogative. Those made under statutory powers are laid before Parliament but do not need approval. It would be anomalous to require approval for those made under the prerogative.
I now turn to that aspect of the Bill which has exercised all noble Lords who have participated in the debate—the Civil Service. The Bill deals in large part with the regulation and conduct of the Civil Service. I was grateful for the comments of the noble Baroness, Lady Prashar; her description of the Civil Service as a public asset was one that we should hold dear. Her remarks advising us to avoid making the Civil Service a political football were very wise—we should avoid that at all costs. The Government are very keen to uphold the independence and integrity of the Civil Service, as I am sure were previous governments. My personal view is that we sometimes risk undermining those qualities in the currency of our debate. The Government are committed to maintaining that impartiality for the permanent Civil Service because it is an important part of the fundamental principles that underpin its operation.
Included in the code is the right for the Civil Service Commissioners to consider directly a complaint or concern from a civil servant about an issue under the code. This was one of the key issues raised in the consultation on the Civil Service Bill. For the first time, we make it clear that that forms part of the contractual relationship between a civil servant and their employer.
The Ministerial Code and the code of conduct for special advisers place a duty on Ministers and special advisers to uphold the political impartiality of the Civil Service and not to ask civil servants to act in a way which would be inconsistent with the Civil Service code. In addition, we are doing much to strengthen existing arrangements. We publish an annual report to Parliament on special adviser numbers, costs and responsibilities, providing a transparency which did not exist before our administration. Updated codes of conduct for Ministers and special advisers were published in July 2005. We have put in place induction programmes for Ministers and special advisers to clarify roles and boundaries. They will affect the culture to which attention has been rightly been drawn in this debate. The Government have undertaken to consult the main Opposition party leaders on the appointment of the First Civil Service Commissioner and the Commissioner for Public Appointments. The Government did exactly that on the recent appointments of Janet Paraskeva, the first Civil Service Commissioner, and Janet Gaymer, the Commissioner for Public Appointments.
Noble Lords will be aware that, in November 2004, we published a draft Civil Service Bill for consultation—I have been reminded of that many times today. We were the first government ever to do this. We are grateful to the noble Lord, Lord Lester, and the Public Administration Select Committee for their work on the draft Bill, which we found helpful in developing our proposals for consultation.
As your Lordships know, the Government are considering the responses received during the consultation exercise. I repeat what I often say on these matters: we will make a Statement in due course. As I am sure noble Lords will appreciate, any legislation has to compete for its place alongside many other priorities. We are looking at the issues raised during the consultation, in particular at things that can be done which do not necessarily require legislation. As I have set out, we have made many changes without recourse to legislation.
Before moving on to special advisers, I shall speak more generally about Civil Service reform. This is a priority for us because it is most important in improving the delivery of public services. After all, that is what the Civil Service is for. The Cabinet Secretary has set out a vision for a Civil Service which is inspired by four things: pride, pace, passion and professionalism. We are developing a more professional Civil Service. The Professional Skills for Government programme will deliver greater professionalism. We are creating stronger leadership in the Civil Service. In creating the National School for Government, we are supporting these areas through the development and delivery of training and development programmes, tied to the needs of a modern Civil Service. In addition, we are strengthening departmental capabilities through the work of corporate service leaders who are ensuring that departments have strong and well led services.
My time is running out, but I could not pass up this opportunity to comment on special advisers, since that matter has occupied such a large chunk of discussion today. 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.
As we know, the role of special advisers is not new. It goes back more than 30 years to the Fulton report and the introduction of special advisers during Harold Wilson's time as Prime Minister. We need to keep the issue in some perspective, particularly numbers. Numbers were referred to on a number of occasions today. The noble Lord, Lord Kingsland, was tempted to put a cap on numbers. That was supported by others in the debate. However, there are only 81 special advisers in post compared to some 3,900 members of the senior Civil Service. I quote Sir Gus O'Donnell on this, when he spoke to the Public Administration Committee. He said:
"There are a very small number at the minute. I think it is something like 80, relative to the senior Civil Service, they are swamped".
He added, for good measure that,
"the system we have works extremely well".
A number of noble Lords made comments in that regard during the debate. The noble Lord, Lord Sheldon, who is a critic on these issues, said that he recognised the fact, and some years ago he was responsible in part for ensuring that special advisers were well paid for the special expertise that they bring. I welcome that endorsement of special advisers.
It is worth reminding ourselves that special advisers must observe the highest standards of conduct—and woe betide if they do not, because we know that they get brought before the court of public opinion. I remind your Lordships' House that it was this Government who introduced the Code of Conduct for Special Advisers and Model Contract for Special Advisers, setting out in clear terms the transparency and the nature of the conditions for their employment. That transparency did not exist under previous administrations.
The other point that I want to dwell on, because it has come up on a number of occasions, is the change made to the code of conduct. The accusation is that it was amended to increase the powers of special advisers and to change their relations with permanent civil servants. The change of the wording was simply this: from "advice" to "assistance". I did not interpret that as meaning, and I do not accept that that means, that special advisers were given additional powers to those of civil servants. It was a change recommended to the Government by the Public Administration Committee, to reflect in reality the way in which special advisers work. For example, one long-recognised task of special advisers is occasionally to brief the media. That cannot simply be defined as advice to Ministers, as under the previous wording. So we should be a little bit sensible here about the words that are used and perhaps not read quite so much into them, because I do not see a conspiracy here to lead special advisers into a role that we simply do not see—having special executive powers and powers to direct.
It is the case that the Civil Service Order in Council permits the employment of up to three special advisers in No. 10 with executive powers to manage and direct civil servants. Currently only one special adviser has those powers—and I offer the reassurance, as I have on many occasions, that there are no plans to appoint any other special advisers with executive powers.
My Lords, I am grateful to the Minister, but will he take account of the recommendation in the ninth report that special advisers should be separated out as a category of government service, distinct from the Civil Service? At present there is confusion between the work of the special advisers and the work of civil servants and Ministers. That recommendation needs to be seriously considered.
My Lords, that is a recommendation to which we shall give serious consideration. It is in no one's interest that that confusion exists, because the role of special advisers and the value that they bring to any administration is immense. Their different and respective roles need to be understood.
There are a number of other issues arising from the noble Lord's Bill which time does not permit me to dwell on. We have answered Questions on the Parliamentary Commissioner for Administration, and I do not intend to go over the matter in detail today. There is also the issue of public appointments and nationality requirements. I am happy to put our thoughts on that in correspondence to the noble Lord to clarify our position. I am overstaying my welcome at the Dispatch Box this afternoon and preventing my noble friend Lord Evans of Temple Guiting from playing his part in the proceedings.
I set out the reasons why the Government do not lend their support to the Bill. That is not to say that there are not things in it of merit, some of which we have already taken on board outside the realms of legislation. There have been issues that were helpfully raised during today's debate. I add my thanks to the noble Lord, Lord Lester of Herne Hill, for the way in which he introduced his Bill. As the noble Lord, Lord Maclennan, said, it is very much in a finished form and we should be grateful for that, because it is crystal clear in its intent. There have been many telling contributions. I listened particularly to those of the noble Lord, Lord Lipsey. His insistence that we ought to reflect much more on the culture that surrounds government and the issue of trust that goes with that is where this debate begins and ends, and I thought his comments on that point were very well made. As the government spokesman responsible for this area of policy, I will continue to reflect carefully on all the comments made in this interesting and important debate. No doubt these are issues and matters we shall return to in more forensic detail at a later date when the Bill has had some time—how much time, I do not know—for further consideration. For now, though, I shall sit down, having listened, and wanting to listen some more, to the noble Lord, Lord Lester.
My Lords, I was once rebuked by a grumpy Member of this House, uncharacteristically, for making a serious point after the dinner hour. He explained that no serious point should ever be made then. I am well aware that this is now the lunch hour, and I will be extremely unpopular if I do not send the House to lunch as speedily as possible. However, I shall first make a few points.
I thank everyone who has taken part in this debate, including the Minister, with his very full and almost entirely negative reply. I shall not attempt to sum up what has been an extraordinarily rich, deep and wise debate, which has raised issues I want to reflect on further. I also thank those who have congratulated my elected leader, Sir Ming Campbell. In my view, it is marvellous to have such a very young energetic Queen's Counsel as the leader of my party—five years younger than me—so I am delighted by that.
I need to say something about complacency, especially government complacency. I hope the Minister will not mind my saying this: the only glasnost or perestroika that came out of his long speech was a reference to a possibility of some change with regard to codifying the Ponsonby rule. Otherwise he did not indicate in any way acceptance of any part of the Bill, and gave no indication of whether the Government will introduce a Civil Service Bill.
Shortly before the previous election, during what we call the "wash-up" period, I was sitting gossiping with two civil servants from a great department—which I shall disguise—about to negotiate with the Minister, when they said, "We can't put any proposal to the Minister unless the special advisers have communicated with the party headquarters and told us that it is acceptable to do so". I said, "I beg your pardon?", and they repeated it. Now, when the noble Lord, Lord Lipsey, my noble friend and leader Lord McNally and I were special advisers, and when the noble Lord, Lord Armstrong, was working in the Home Office and I was working in his department, that would have been totally unthinkable. I would not have dared to go to Roy Jenkins without the Principal Private Secretary being there. I never did—I never intrigued—but if I had gone to Transport House to ask them for the party line before going to the Home Secretary, he would have sent me packing immediately.
My Lords, that certainly would have been true of the Home Secretary. The noble Lord, Lord Armstrong, refers to White Papers and so on, and the noble Lord, Lord Lipsey, says that what matters is a proper culture, and it is true that rules and principles are no panacea—they simply provide a coherent framework to encourage such a culture. It is better, isn't it, to have Parliament in the saddle in promoting that framework than a self-interested Executive who will always find wriggle room as far as possible because power is delightful and absolute power is absolutely delightful?
I take another example. The Minister referred to prerogative powers in relation to the colonies and Orders in Council. That is the subject matter of a pending case which I am not in, the Chagos islanders case, where an Order in Council has been made. The basis of the case is that the Queen can do no wrong in the colonies. Taken literally, it means that the Queen, acting under an Order in Council under the prerogative, could decide to boil alive some of Her Majesty's subjects and could do no wrong in the colonies. I say that only because in theory that is the true position under the prerogative unrestrained by Parliament or courts. We will have to see whether the courts, in the case to which I have just referred, accept the Government's argument, which is that there should be no effective judicial review over the matter.
I have tried in my Bill to be rather practical. I have not sought to regulate excessively. I have not sought, for example, to regulate the treaty-making power from signature of treaty but only upon ratification. I have not sought on the war-making powers to say that one must always go to Parliament initially. I have not sought with the Civil Service to lay down an exhaustive and detailed set of rules. I hope very much that if the Bill is given a Second Reading, we will come back to these matters.
I believe that the true message that comes through from the guffaw that greeted the Minister when he rose is that we are still in the position of a kind of comedy—"Waiting for Godot" or maybe "Waiting for Gordon Brown". I very much hope that the comedy will soon end and that we will actually get down to the serious business of reform either by a constitutional convention, a committee, a Joint Committee or whatever. I apologise for not doing justice to any of the individual speeches. I would ask the House now if it will give the Bill a Second Reading.
On Question, Bill read a second time, and committed to a Committee of the Whole House.