Second Reading

Constitutional Reform and Governance Bill – in the House of Lords at 3:39 pm on 24th March 2010.

Alert me about debates like this

Moved By Lord Bach

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Chief Whip (House of Lords), HM Household, Captain of the Honourable Corps of Gentlemen-at-Arms (HM Household) (Chief Whip, House of Lords)

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 and Governance Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, much of the Bill crosses familiar territory for your Lordships. It was preceded by the Government's draft Constitutional Renewal Bill which was published in March 2008 for pre-legislative scrutiny. The draft Bill was also put out for public consultation in the Government's draft legislative programme. In total this Bill has been preceded by 18 consultations and publications. Many of its parts have been extensively debated by your Lordships over the years.

Perhaps, therefore, it is appropriate at this time for me to put on record again the Government's gratitude to the Members who served on the Joint Committee on the draft Bill. I also thank the Constitution Committee, the Joint Committee on Human Rights, and the Delegated Powers and Regulatory Reform Committee for their work in scrutinising the draft Bill and this Bill.

The Bill that is before us today goes much further than the draft Bill, and I make no apology at all for that. The Bill before your Lordships is a historic package of measures forming part of a wider obligation, crossing all party divisions, to rebuild trust in our democratic and constitutional settlement and to reinforce the principles of transparency, accountability and probity across government and Parliament.

The Bill has been progressing through Parliament against the backdrop of an unprecedented crisis of confidence in politics. The additions we have made to the Bill are a direct response to that. It is testimony to the seriousness of the situation we face that, for example, the provisions to implement the Kelly report, the 30-year rule for public records, and the tax status of parliamentarians all have cross-party support. Let me deal briefly with each part of the Bill.

Part 1 deals with the Civil Service, which has hitherto been established under the royal prerogative. The Government are of the view that it is now time to put the role, governance and values of the Civil Service onto a statutory footing, to give Parliament and the public confidence that an impartial Civil Service will be maintained for the future. Our Civil Service is admired across the world for its professionalism and impartiality. By placing the key values of the Civil Service on a statutory footing, we will be safeguarding the aspects of the Civil Service which we might take for granted. Your Lordships' Constitution Committee has highlighted this as one of the most significant parts of the Bill.

Part 1 will establish the Civil Service Commission on a statutory footing, thus guaranteeing its independent status. It also provides for the Civil Service and the Foreign Secretary's general power to manage the Civil Service and the Diplomatic Service respectively to be delegated, as now, to the head of the Civil Service and the permanent heads of department.

Part 1 also lays down a requirement for the Minister for the Civil Service and the Foreign Secretary to prepare and lay before Parliament a code of conduct for the Civil Service and the Diplomatic Service respectively. The codes must include the key Civil Service values of integrity, impartiality, objectivity and honesty. The codes will form part of the terms and conditions of civil servants.

Clause 7(2) provides that the Civil Service and Diplomatic Service codes must require civil servants who serve an Administration, mentioned in Clause 7(3), to carry out their duties for the assistance of the Administration as it is duly constituted, whatever its political complexion. The Administrations in question are Her Majesty's Government and the devolved Administrations in Scotland and Wales. This does not affect civil servants who are on loan to or directly employed by bodies such as the Supreme Court, the Scottish Court Service or arm's-length bodies, whose duty is to serve the organisation they are seconded to or employed by, and not the aforementioned Administrations.

Clause 8 provides for the publication of a code of conduct that prohibits special advisers from authorising expenditure, managing permanent civil servants and exercising statutory powers. This prohibition was added by the Government as an amendment in the other place and is consistent with the recommendation made by the other place's Public Administration Select Committee. The Bill provides that all appointments to the Civil Service, subject to limited exceptions, must be on merit, on the basis of fair and open competition. Civil Service Commissioners are required to publish a set of principles which will be applied to appointments into the Civil Service. The Minister for the Civil Service and the commission may agree that the commission can carry out additional functions in relation to the Civil Service. In response to issues raised by the Delegated Powers and Regulatory Reform Committee, I confirm that this power would not be used to confer functions on the commission that are already conferred by statute on some other person or body.

Part 2 places the Ponsonby rule in statute and for the first time gives legal effect to a negative vote by either House on the ratification of international treaties. The Ponsonby rule requires the treaty to be published and laid before both Houses for a minimum of 21 sitting days prior to ratification. Although the Ponsonby rule is well established, it is based on constitutional convention rather than law and, formally, Parliament has no ability to veto a ratification. I mentioned that this part gives legal effect to a negative vote of either House, but the legal effect is different, depending on which House is concerned. Negative votes by the other place could ultimately block ratification by the Government. If there is a negative vote by this House, the Government could nevertheless proceed to ratify the treaty after laying a formal statement before both Houses to explain why. This variation is an appropriate reflection of the primacy of the other place as the elected House.

I turn to Part 3 and the referendum on voting systems. These provisions were approved by a very large majority in the other place of some 178. They provide for a referendum to be held on changing the voting system for elections to the House of Commons to the alternative vote. If approved, the referendum will be held by October 2011; the Bill also provides for the practical and procedural aspects of the referendum and the referendum campaign. I look forward to hearing the views across the House on these provisions.

To anticipate one question that may arise-why now?-as I indicated in my opening remarks, in the past 12 months we have seen a crisis of confidence in our political system and our politicians on a scale that perhaps none of us has witnessed in our political lifetimes. Trust has been profoundly damaged; I do not think that that is an overstatement. The Government have already taken action to deal with the issue of MPs' expenses, but the crisis of confidence runs much deeper than that. We must do all that we can to rebuild that trust in politics, and the electoral system has to form some part of that process. We believe that this is a credible alternative which would go with the grain of what the British people value in our current system and build on those strengths-particularly on the single-Member consistency, the directness and depth of the relationship between constituents and their representatives and the majoritarian system that is right for the House of Commons. This is clearly a significant change, so it is appropriate to put it to the people in a referendum.

On Part 4 and parliamentary standards, this part of the Bill includes measures to implement recommendations made by the Committee on Standards in Public Life in its report on the MPs' expenses scheme. The key provisions strengthen the enforcement regime in respect of the MPs' expenses scheme and transfer responsibility for determining MPs' pay and pensions to the Independent Parliamentary Standards Authority. Happily, the provisions in this part of the Bill enjoy cross-party support and have been agreed with Sir Christopher Kelly and Sir Ian Kennedy, respectively the chairmen of the Committee on Standards in Public Life and of the Independent Parliamentary Standards Authority. None of the substantive provisions in Part 4 apply to your Lordships' House as currently constituted.

Photo of Lord Naseby Lord Naseby Conservative

Will the Minister confirm that the trustees of the parliamentary pension fund must continue to have independence and cannot be responsive to any diktats from IPSA?

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

I do not have the answer. I suspect that I know what the answer to the noble Lord's question is and I will certainly answer it when I come to wind up the debate later today.

Part 5 contains a package of measures which relate to your Lordships' House. The Bill brings to an end the by-elections to replace hereditary Peers once they die. Those hereditary Peers who are currently Members of the House will, of course, not lose their seats. The Bill only abolishes the mechanism which allows further hereditary Peers to enter this House solely on the basis of their hereditary title.

I recognise, as we all do, the interests of the House in these provisions. The Government have acted in good faith in taking forward reform of your Lordships' House; demonstrably so, as we have worked closely with other parties to build consensus in cross-party talks. We made clear in 1999 that the by-election process was not intended to be a permanent arrangement and it has gone on now for over 10 years. At the last by-election, there were more candidates than electors-in fact, that is true of three of the last four of these elections-and that was an election for one of the larger groups in your Lordships' House, the Cross Benches. This is not, we believe, a credible way of obtaining a seat in our legislature.

Noble Lords will recall that the 92 hereditary Peers remained in the House as, in some ways, a guarantee of full reform. That is what the Government are committed to and that is why we will be bringing forward proposals very shortly.

Noble Lords:

Oh!

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

I would argue that we have kept up the momentum.

It is essential that this House is able to deal with disciplinary issues effectively. Last year, the Privileges Committee concluded that this House did not have the powers it needed to expel Peers, or to withhold a writ of summons from a suspended Member. In order to ensure that this House has a robust disciplinary regime to deal with misconduct, Part 5 includes important measures which will, among other things, provide the House with the power to suspend or expel a Peer; override a writ of summons, or cause one not to be issued; and provide that Peers are to be disqualified from the House after conviction for a serious criminal offence, or being subject to a bankruptcy restrictions order.

Part 5 also allows Peers to resign, a provision supported by the Public Administration Select Committee. Peers who have left the House may, if they wish, disclaim their peerage.

A consensus is forming around the need to address the growing size of your Lordships' House. With over 700 Members, this House is second in size only to the Chinese National People's Congress. Indeed, a recent report by the Commons Public Administration Select Committee, entitled Goats and Tsars, expressed support for allowing Peers to resign from this House. In all other aspects of public life we accept that a person should be allowed to resign from office, and the Government believe that Members of this House should be able to resign if they no longer intend to sit and vote. In advance of full reform, Part 5 will provide this House with the powers it needs to operate effectively and for us to address the growing size of the House.

I turn to Part 6 and tax status. Part 6 provides that MPs and Lords Temporal are to be deemed resident, ordinarily resident and domiciled in the United Kingdom for the purposes of income tax, capital gains tax and inheritance tax. As a result, they will be liable to pay these taxes on their worldwide income, gains and assets and will be unable to access the remittance basis of taxation. The Government are clear that Members of this House and the other place should be liable to pay the same taxes as the majority of taxpayers in the UK. I am glad to say that this is one of the many issues in the Bill that enjoys cross-party support.

My noble friend the Leader of the House wrote to all noble Lords on 29 January, setting out how the new regime will apply to incumbent Members of the House. While MPs who do not wish to be deemed for tax purposes may stand down, we recognise that the situation is different for incumbent Members of your Lordships' House. To this end, Part 6 includes transitional arrangements for Peers who are not prepared to accept deemed status.

I turn to public order. Part 7 sets out a clear legal framework for the participation in, and policing of, demonstrations around Parliament Square, ensuring that Parliament is able to function while at the same time allowing people to exercise their basic democratic rights to assemble and protest peacefully. This has been informed by wide consultation with the police, the House authorities and the public. The Bill repeals Sections 132 to 138 of the Serious Organised Crime and Police Act 2005, which regulate demonstrations in the vicinity of Parliament. This proposal has received widespread public support.

We take seriously the need to safeguard the proper operation of Parliament and the need to maintain access to the Palace of Westminster. The powers in Schedule 9 allow senior police officers to give directions imposing conditions on organisers or those taking part in processions or assemblies within a designated area around Parliament.

Part 8 concerns human rights claims brought against the devolved Administrations and confirms that such claims can be brought within 12 months. This part of the Bill has been agreed with the devolved Administrations, and the Scottish Parliament has given its consent in line with the Sewel convention. Indeed, the approach set out in this part of the Bill was agreed by the House itself when it approved an order under the Scotland Act in the previous Session.

Part 9 deals with courts and tribunals. It and Schedule 10 include a range of measures to strengthen the independence of the judiciary and further improve the appointments process. For example, statutory salary protection is extended to various judicial office-holders. Part 9 also removes the Prime Minister from the process of appointing Supreme Court justices. Recommendations to the Queen will in future be made by the Lord Chancellor, following work done by the selection commission.

Part 10 deals with national audit. On 6 March 2008 the all-party Commons Public Accounts Commission published a report on the future governance of the National Audit Office, and Part 10 implements its recommendations. It modernises the NAO's governance arrangements, to ensure appropriate internal controls, while at the same time safeguarding the independence of the Comptroller and Auditor-General. The Public Accounts Commission has strongly endorsed these provisions. Part 10 also includes a framework power to enable the National Assembly for Wales to legislate for the governance arrangements of the Wales Audit Office.

Part 11 permits the Treasury to issue directions about the way that government departments prepare estimates. It allows for the consolidation of NDPBs and other central government bodies into supply estimates and departmental resource accounts. This will provide greater consistency and transparency of public spending data that are presented to Parliament by aligning the spending of NDPBs with the existing budgetary treatment. The Bill also allows Welsh Ministers to make equivalent provision in Wales.

I turn to Part 12. In line with the Government's response to the review of the 30-year rule, chaired by Paul Dacre, the Bill provides for a transition to a 20-year rule. This rule governs the point at which public records of historical significance are transferred to the National Archives or to other places of deposit. In addition, certain exemptions under the Freedom of Information Act 2000 will cease to have effect after 20 years, rather than 30 years as at present. The Bill also provides for enhanced protection for limited categories of royal information, to protect the constitutional conventions surrounding the monarchy.

Part 13 includes provisions to clarify the effect of the Electoral Administration Act 2006 in relation to the eligibility of Commonwealth and Irish citizens to be Members of this House or holders of other public offices, in line with the Government's Written Ministerial Statement of 15 December. I hope that the inclusion of this provision will reassure Members who have been concerned about this issue. Clause 91 in this part requires returning officers to take reasonable steps to ensure that the counting of votes in parliamentary elections begins within four hours of polls closing. This part of the Bill also contains provisions to improve the regulation of referendums, including the AV referendum proposed in Part 3. In that regard, the House will wish to note that Clauses 88 and 89 respond to recommendations from the Electoral Commission. This is an important Bill; it has had a long gestation, and many of its provisions-

Photo of Lord Lea of Crondall Lord Lea of Crondall Labour

I am most grateful to the Minister for giving way, as he is clearly reaching his conclusion. Could he say a word about the circumstances in which we are meeting? We have the wash-up coming up very shortly. Could he remind the House how this works? He has referred to the precedents in terms of the scrutiny that is being given to many of the items in the Bill, but it would be convenient to know exactly who meets whom in wash-up, how we can whittle something down to being a lot smaller than what we are looking at now, when we receive the report, and so on. Many Members will think that is relevant to the context in which we are meeting today.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, I cannot comment on whether wash-up will begin soon or not. It is an entirely theoretical consideration at this stage. I can say to my noble friend, and I choose my words carefully, that as the House will know, the wash-up is a regular feature at the end of each Parliament. It is important to stress that it does not change the procedures of the House in respect of legislation. In order to reach Royal Assent, a Bill must go through all of its remaining legislative stages in both Houses, and in wash-up this is done on a much faster timescale. The business for the few days of the wash-up is scheduled on the basis of agreements between the usual channels. It is common practice for Bills on a wide range of subjects to reach Royal Assent during a wash-up. Examples from recent years include Bills on education and criminal justice and a Bill giving effect to the statute for the International Criminal Court.

Photo of Baroness Boothroyd Baroness Boothroyd Crossbench

My Lords, how many constitutional Bills have gone through the House in wash-up in the past 10 years?

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

I think that the answer is none, but some other Bills that have gone through wash-up are extremely important and have had a great influence on our national life, not least Bills on education, criminal justice and other matters. I dare say we will discuss this later this afternoon and well into this evening.

Photo of Lord Elton Lord Elton Conservative

My Lords, can the noble Lord remind me, and probably others, whether it is possible in wash-up to insert new material or change material in a Bill, or is it merely possible to remove those bits which are not agreeable to all parties?

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, I have said that the procedure is the same as for all Bills. In other words, all Members, if they are so minded, have the right to put down amendments to Bills. The timetable is speeded up considerably. I cannot assist the House much more on this subject.

My noble friend was right: I had almost finished what I had to say. This is a very important Bill; it has been in gestation for some time and many of its provisions and policies have been heavily scrutinised, not least in your Lordships' House, over that time. It is a Bill whose time has come and a Bill which will help us to restore public trust in our constitutional settlement. I commend it to the House. I beg to move.

Photo of Lord Henley Lord Henley Shadow Minister, Justice 4:05 pm, 24th March 2010

My Lords, the Minister has introduced this Bill with a straight face and has answered all the questions that have been put to him with a straight face. On behalf of this side of the House and possibly the whole House, I congratulate him on that rather difficult task.

The noble Lord has presented the Bill as a grand and sweeping improvement to the way in which this country is governed but in reality, as we know-and as was made clear as he introduced the 13 parts of the Bill-it is nothing of the sort. It is a ragbag collection of proposals and ideas that range from the possibly sensible to the absurd. The noble Lord knows this and most of us in the House know this.

If the Government had really been serious about presenting this Bill to us in a fit state to be approved, they could have stepped up their efforts to do so. The noble Lord told us that there have been 18 consultations. The Government have been producing White Papers, Green Papers and drafts for several years. The present Bill, however, was quite different when it was first presented in another place in July last year. It was given its Second Reading in another place some time later, on 20 October. Since then, it has been languishing while the Government use it as a vehicle for whatever the latest idea happens to be and whatever other Bills happen to come before it in the queue, despite its alleged importance as a constitutional Bill.

The noble Lord will, I imagine, have read the quite damning report produced by your Lordships' Constitution Committee, which takes great exception to the way in which the Government have behaved. I could, if I wanted, read out great chunks of that committee's report, but no doubt the noble Lord will be aware of them, as will the rest of the House.

If the Government need to make delay after delay in order to insert amendments made in desperate response to bad headlines and unfavourable opinion polls, that is their prerogative. But to insert amendments on the voting system for Parliament, on the tax status of parliamentarians and on changes to the Parliamentary Standards Act-enacted only last year-late in the Bill's stages in another place so that little debate could take place, to bring the Bill to your Lordships' House only a few days before what we all know will be the announcement that we are about to have an election, in the full knowledge that there will be no time for scrutiny, and yet still to expect your Lordships' House to embrace it is wishful thinking indeed. We all know that there is no time available for a Committee stage for this Bill, almost a third of whose clauses were not debated in another place. I repeat: almost a third of its clauses were not debated in another place, yet the noble Lord is suggesting that we proceed with a Bill of this sort-a constitutional Bill-in the wash-up.

Having said that, I shall be kind. The whole of the Bill is not junk. There are clauses-indeed, whole parts of the Bill-which are largely unobjectionable, but they still need the scrutiny that this House needs to give to all Bills that come before it. That is what we do. Part 1, for example, places the Civil Service on a statutory footing; it could-indeed, it probably should-have been given a long overdue discrete Civil Service Bill. That is something for which we and many others in this House have been asking for many years.

We would welcome greater control over the armies of special advisers, for example, but, as the noble Lord is fully aware, a code already exists. How, in practical terms, will anything be different except, as my right honourable friend Mr Cameron has said, that their numbers would be reduced? Will the Government's proposals be anything other than cosmetic? Why do the proposals relating to the Civil Service not include quangos and other quasi-governmental bodies? We all know that such bodies cost the Exchequer some £43 billion a year. Where are the controls? Where is the code relating to service in such bodies? These are areas that this House must probe in Committee, but they will, alas, probably have to be dealt with at a later date in another Parliament.

Part 1 is perhaps the most important part of the Bill, but it is important that we seek the opportunity to enhance it and to embrace all the government bodies and to get the controls right. However, we must debate that fully, and in Committee; we do not want government or legislation simply by decree, which is what the noble Lord is seeking from us.

On another part of the Bill, we will consider carefully, again in Committee-if the Government allow us the proper Committee stage that we deserve-the provisions relating to the ratification of treaties. We on this side of the House have favoured, in principle, the idea of greater parliamentary control, although it is important not to forget the flexibility that is inherent in the application of the royal prerogative in some circumstances. Again, we need to debate that. However, as the Minister also made clear in his introduction, it is not clear how far either House has authority under these proposals ultimately to prevent a Government from signing a treaty if they are determined to do so. The role of this House seems limited. There is a particular lacuna on European treaties. After the betrayal of the promise made at the last election by the Government-and by the Liberal Democrats-to give the British people a say on the draft treaty before it was ratified, it is abundantly clear, not least after the stitch-up behind closed doors with the EU president and the so-called high representative, that it is not enough to rely on the systems set out here.

The Government are offering another referendum. At a late stage in another place, as the Minister said, they found themselves pushing for one on reform-if I might put it in those terms-of the voting system to abolish first past the post and introduce the alternative vote system. I understand that that would have been one sure-fire method of voting that would have increased the Labour majority in the 1997 election yet further. The Prime Minister has been entirely unenthusiastic about any such change until-surprise, surprise-an election looms that he cannot duck and obviously feels that he cannot win.

Clearly, this has nothing to do with electoral fairness and everything to do with flashing a bit of ankle at the Liberal Democrats, who are leaning forward in eager anticipation even at the very mention of proportional representation-except that we know that this is not proportional representation but the alternative vote. It is pretty clear that many of the Minister's noble friends are no more enthusiastic than we are at changing to a system that will embed in all future Governments a party that has been unable to win a national election on the strength of its own policies since the days of the Ottoman Empire. I think that we know a gimmick when we see one.

I turn to Part 5-to relieve the noble Lord, let me say that I am not going to go through all 13 parts of the Bill, as he kindly did. I do not have time for all 13 parts; my noble friend will deal with some of them at the end. Part 5 seeks to make further changes to membership of your Lordships' House. We were given to understand in the gracious Speech at the beginning of this somewhat truncated Session-we do not know how long it will last, but it cannot last that much longer-that a Bill would be published providing for general reform of the House of Lords. That would have been the appropriate way to legislate. Instead, we have a risible effort in Part 5, largely pilfered from the ideas put forward by the noble Lord, Lord Steel, who I imagine is here because, to his dismay, they are not pilfered fully enough.

The Government have been dithering over Lords reform for some time, but to bring forward the clauses in Part 5, which would create a progressively fully appointed House, is, as the noble Lord is fully aware, in breach of that undertaking made by a privy counsellor, the noble and learned Lord, Lord Irvine of Lairg, to this House on 30 March 1999 and accepted by both Houses as the basis of the passage of the 1999 Act as stage 1 reform. It is also directly contrary to the Government's pretence in their proposed draft Bill that they want an elected not an appointed House. It is a move away from that objective with no guarantee that reform will take place. Moreover, it would remove from the House a group of Peers with no interest in preserving the life peerage as an exclusive method of coming to this House. The proposal is confused; it is dishonourable in that it breaches that undertaking made a privy counsellor; and, except in the context of the perfectly legitimate point of view of many of your Lordships that an all-appointed House is the right stage 2, it is entirely illogical. It makes reform less rather than more likely. For those reasons we do not support it.

The suspension and removal of Peers can, again, be dealt with effectively either in the context of a wider reform Bill or in any legislation that may follow relating to discipline and behaviour after the reports by the noble and right reverend Lord, Lord Eames, and the SSRB. We do not oppose such a provision; indeed, my noble friend Lord Strathclyde was one of the first to remind the House of the powers of suspension, which were used effectively in the case of the accusations against the four Peers earlier this year. In the most serious cases, suspension can be renewed at the beginning of each Parliament and, while we agree that there should be a clear power of permanent exclusion, it is not a matter of such urgency as to require action in the next few weeks.

I move to other provisions, which I confess perplex me a lot, as they appear to have been created for the convenience of the Lord President of the Council and all his other titles-the noble Lord, Lord Mandelson. I refer to Clauses 56 and 57. We on these Benches see little attraction in changing the law to allow this House to be a staging post to a career in the Commons, or to allow defeated Ministers to sit out periods of opposition in comfort here before disclaiming to fight the next election. This House has its role in the constitution, which should not be to provide a warm rest for MPs while they scour the country for another seat. Let us use the existing leave of absence scheme to enable those Peers who do not wish to take part or to be lobbied to absent themselves. We can see no urgency for that proposal except to satisfy the unsatisfied ambitions of the Lord President of the Council and all his other titles. That does not seem to me, or to many other noble Lords, a sufficient basis on which to make such a constitutional reform. On a lighter note, I suggest that, if we did make such a change, there might at least be, as in life sentences for murder, the possibility of recall in certain circumstances and we could bring the noble Lord back if he misbehaved.

I have touched on several areas of concern. There are many more in this Christmas tree of a Bill which my noble friend will try to address when she winds up in the time available for a major constitutional Bill that has attracted 43 speakers on one of the last days of a dying Parliament. My noble friend will do what she can, but I do not think that she will be able to satisfy all the questions that need to be asked. I am not sure that the Government will be able to do that either, but perhaps they can when the Bill reaches its Committee stage, if it ever does. I end by repeating what I think is the general feeling throughout the House: this is not the way to reform the constitution; nor is the time right; nor can this House-I stress this House-perform its proper function of scrutinising a Bill of this sort that is brought to us as this Parliament dies.

Photo of Lord McNally Lord McNally Leader in the House of Lords, Spokesperson for Constitutional Affairs , Liberal Democrat Leader in the House of Lords 4:19 pm, 24th March 2010

My Lords, our debate takes place against the background of one of the most devastating reports I have read as a commentary on a piece of legislation. As the noble Lord, Lord Henley, indicated, the 11th report of this House's Select Committee on the Constitution is the most damning indictment of the Government's failures in relation to constitutional reform.

I know that the noble Lord, Lord Bach, and other noble Lords opposite do not like to be reminded that the sure-footedness shown in the first term of this Labour Government owed much to the groundwork done pre-1997 by the joint Lib-Lab committee which drew up the blueprint for constitutional reform under the joint chairmanship of my noble friend Lord Maclennan and the late Robin Cook. However, that view is endorsed by the editorial in last week's New Statesman, which opined that continuing Lib Dem input into the constitutional programme of institutional reform would have ensured that,

"constitutional reform would have been thoroughgoing rather than half-baked".

So it would have been. We would not have tolerated the shelving of the voting reform proposed by the Jenkins commission; we would not have bungled the attempts at English devolution; and we would not have mismanaged the changes to the responsibilities of the Lord Chancellor and the establishment of the Supreme Court. On Lords reform, we would not have tolerated a policy of going round in ever decreasing circles of consultations, inquiries, White Papers and cross-party discussions. Now, after a decade of obfuscation, dithering and delay, the Government bring forward a Bill with more deathbed conversions than the last act of "Hamlet".

This brings me back to the findings of the Select Committee-findings which, in most cases, would have resulted in ministerial resignations, rather than the brass neck of trying to bring forward the Bill. Let me quote-since the noble Lord, Lord Henley, did not-one of its many critical findings. It states very bluntly that,

"the Government's management of the Bill", means,

"that neither House of Parliament will be able to scrutinise the Bill as thoroughly as is appropriate for measures of constitutional reform".

That leaves the House with a dilemma. Are there enough good things in the Bill which are worth saving in wash-up? If so, are the Government willing to tell us what they are? My view is that many parts of the Bill have cross-party support, and lack of detailed scrutiny should not be a deciding factor where the measures proposed have had years- sometimes decades, sometimes a century and more-of scrutiny and debate.

As can be seen from the speakers list today, in spite of the Select Committee's devastating indictment of the Government's Bill, we intend to give the Bill as thorough an examination as possible at Second Reading. Colleagues expert in specific areas will deal with those matters in detail. I will restrict myself to observations on just three points. On reform of the Civil Service, I refer to one of my favourite quotes of the noble Lord, Lord Sheldon, who said that the two great gifts we received from the 20th century to the 21st are the BBC and our Civil Service. We on these Benches will continue to defend both. We take pride that the reforms on which the integrity and reputation of our Civil Service are based are the great Northcote-Trevelyan reforms, enacted by a Liberal Government. However, we regret that it has taken 140 years to bring forward legislation to underpin those reforms. We regret, too, that the proposals before us lack a statutory basis for the Ministerial Code and that the opportunity is not taken to strengthen the independence of the Civil Service Commission.

I turn now to the matter of Lords reform. We would not be in the sorry mess we are in today regarding reform if the Government had adopted and given time and support to the Bills initiated by my noble friends Lord Steel, Lord Oakeshott and Lord Avebury. The proposals in the Bill are not a testimony to the radicalism of Mr Jack Straw, but an indictment of his dithering and delay over these past 10 years. Let me admit now that I regret that we did not grasp with both hands the findings of the Wakeham royal commission. The proposals seemed modest at the time, but if they had been adopted, I believe that they would have set in train a process which would have continued throughout the decade and beyond. As it is, we have too little, too late from Mr Straw. If this last-minute hotchpotch of a Bill is seen as a cunning plan by Mr Straw to give Labour candidates some credibility on the doorstep in terms of reform of our system of governance, he is wrong. What he has produced is a checklist of his own failures. The message from this Bill is that if you want to clean up politics-if you want changes that are thoroughgoing, rather than half-baked-vote Liberal Democrat. We, rather than those who are driven to it by expediency, believe in reform.

Let me make a similar point to the Conservatives. If you think that you would be able to leave Lords reform to a Cameron third term, you are living in cloud-cuckoo-land. This House is already damaged goods. The idea that you can increase its size to more than 800, based on appointment for life by patronage and appointment, gravely underestimates public opinion on the matter.

A few weeks ago, I suggested in a debate initiated by the noble Lord, Lord Willoughby de Broke, that his grandfather, the leader of the last-ditchers, quit the field on 10 August 1910 because of the imminence of the grouse season. The noble Lord kindly sent me a copy of his grandfather's memoirs, which makes it clear that the last-ditchers were defeated not because of the grouse but because the Bishops ratted on their promise of support. There is a contemporary relevance to this, because the noble Lord, Lord Willoughby de Broke, made it clear to me that his policy now is for a three-option referendum on Lords reform-the status quo, appointments or elections. So there we have it: the last-ditchers have moved further in the past 100 years than many on the Labour Back Benches.

I have a final and brief word on reform of the voting system. Like the Electoral Reform Society, we would have preferred a multiple-choice option in any referendum. However, we do not want to make the same mistake that we made over Wakeham and reject the better because we cannot have the best. We will listen carefully to what all sides have to say and give particular weight to the point made by the Select Committee that,

"the consequence of the Government tabling so many late amendments to the Bill is that the parliamentary consideration given in both Houses to the important aspects of constitutional reform which this Bill is likely to effect has been substantially curtailed".

On the other hand, a consultative referendum early in the next Parliament would assist rather than hinder deliberations and would not fall foul of the strictures from the Select Committee that we are producing change without scrutiny.

There will be those who will say that such is the parlous state of our economy that it would be frivolous to devote parliamentary time in the next Parliament to constitutional reform. Liberal Democrats take a contrary view. It is in part because of the deficiencies in our governance that we find ourselves in the state we are in. We can debate whether or not we have a broken society, but there is no doubt that we have a broken and mistrusted political system. That is why, in the coming election, we will be able to make our case for fundamental reform to receptive ears. People know that we have to change our ways.

I will make a final point about timing. The idea that crises squeeze out other measures flies in the face of history. At a time of this country's greatest peril, the wartime coalition produced the Beveridge report and the Butler Education Act. Good government can deal with crisis and carry through reform.

As I said in opening, my colleagues will deploy their considerable expertise on the measures and we will then take our case to the hustings. In the mean time, I leave noble Lords with the last words of the Constitution Committee:

"This is no way to undertake the task of constitutional reform".

Photo of Baroness D'Souza Baroness D'Souza Crossbench 4:29 pm, 24th March 2010

My Lords, this Bill has several excellent provisions. It seems somewhat parochial to go back to House of Lords reform but that is what I am going to do.

On 28 January 2009, the Secretary of State for Justice, Mr Jack Straw, in evidence to the House of Lords Constitution Committee, said that the Government had been less than enthusiastic about a Private Members' Bill. One can only assume that he was referring to what we call the Steel Bill. He said that if this was confined to specific issues then all would be well and good but if it,

"turned out to be a Christmas tree on which people then hung major proposals for reform, then it would be unmanageable".

The Government have repeatedly asserted that smaller, incremental reforms to the House of Lords were unacceptable because they would delay or even obviate large-scale and fundamental reform. Yet the Bill before us today proposes smaller reforms-most of which I would like to support. In one section at least it is close to the Steel Bill. One wonders what happened to the Government's logic.

The Bill has at last arrived in the House of Lords. As we have heard, it started life in the other place in July last year as a rather ornately decorated Christmas tree which gradually lost its splendour until it became a relatively meagre thing. Then, bit by bit as it wound its way through the other place, it got more baubles and tinsel. In the past six months or so it has inexplicably lost no fewer than 17 clauses but gained, according to the Constitution Committee's report, an additional 39 clauses, many added in Committee and on Report in the other place. What has been retained of House of Lords reforms include the ending of by-elections to replace hereditary Peers, disqualification of Peers found to be guilty of serious crime, provisions to suspend and even expel Members and the resignation of a peerage. However, there is no provision to allow Peers to retire. I feel that is different from resignation from the House. I address that today.

I have spoken before, as have many others, on the need to contain numbers in this Chamber. The Minister has referred to it many times. We are one of the largest second Chambers in the world-certainly the largest in Europe-and likely to get much larger. This does nothing for our image. It is especially difficult to defend with any logic when so many do not attend. The inevitable conclusion is that those who accept peerages now do so for the worst reason: to have a title without committing to public service. This undermines what this House tries to convey through outreach programmes and by its daily work: that we are an increasingly professional body doing a necessary job. Many of us are but some are not. Why must we continue to court criticism by maintaining such an unwieldy number when it is simply not needed? I repeat, why can we not have a dignified retirement process-different from resignation-for those Peers too old, too infirm or even too busy to attend? It might come as a relief to some Peers who either struggle on, feeling it is their public duty, or feel guilt-ridden for not being able to be active. It should not be beyond the resources of this House to work out suitable details and to develop an appropriate form of words or even a ceremony to facilitate dignified retirement.

Other provisions in this section of the Bill would enable a permanent leave of absence. This might be useful in cases where Peers have not attended in many years-I have in mind one Cross-Bencher who has not turned up in 10 years. It could be issued as a non-negotiable request. This would preclude the House having to defend such non-attenders and bring the numbers down. In time, it would convey a serious message: appointment to this House is a privilege but one with responsibilities. If these are not honoured then access to this House is curtailed.

There is no indication in the Bill that the House of Lords Appointments Commission might become a statutory body accountable to Parliament. The Public Administration Select Committee concluded in its January 2009 response to the government White Paper that the House of Lords Appointments Committee could and should take a wider role of determining the balance of parties in the House and arriving at decisions on membership based on longlists supplied by the parties themselves. The independence of HOLAC, it said, could be better guaranteed by it becoming a statutory body, and both these changes could be very easily achieved with immediate effect precisely because the present powers of HOLAC are not set in statute.

It is very difficult to see why these small but important reforms should not be enacted. What possible objections can there be to tidying ourselves up and presenting a leaner image to the outside world? The alternative could just be a House that becomes increasingly out of touch with taxpayers' perceptions, even risking real public demand to abolish this House. I am not sure that we have the luxury to cast these long-awaited reforms aside, and gradual but steady change is now possible. That said, we may be expending our energies to no effect. This Bill will go to wash-up-of that I think we are pretty sure-and who knows what, if anything, will survive that harsh haggling? I hope that much of the Bill does survive. It would be even better if additional reforms, such as the one that I have outlined, were to be included but I suspect that that is a very vain hope.

Photo of The Bishop of Durham The Bishop of Durham Bishop 4:35 pm, 24th March 2010

My Lords, at the moment this debate is, I think, about sending signals, not fine-tuning an actual law. I am grateful to the noble Lord, Lord Bach, for his clear introduction. I am not sure that the Bill is a Christmas tree. A Christmas tree has a clear shape and a warm attractiveness but I do not really feel that about this Bill. However, that is no reason why we should not state clearly where the problems and principles lie, and clarify one or two particular matters. I have to say to the noble Lord, Lord McNally-mindful that he has made me carry the can for the failures of my predecessors 94 years ago-that the last scene of "Hamlet" has a great many deathbeds but no actual conversions. Perhaps that is what he was hinting at.

The problem is far more widespread than the Bill acknowledges. Tackling it in this rushed and piecemeal way fully deserves the scathing treatment it received from your Lordships' own Select Committee in the report which has already been referred to twice. As it says:

"This is no way to undertake the task of constitutional reform".

For the past few years, it has been easy to distract attention from other pressing issues by saying, "Let's reform the constitution, and let's do something with the Lords". That plays well in parts of the press, and there are so-called think tanks which belie their own designation by trundling along for the ride. However, this is a recipe for shallow, short-term thinking. If you translate it into statute, it will produce a muddled and messy public life, because a muddle and a mess is what we already have. The scandals of this past year-the unprecedented crisis of which the noble Lord, Lord Bach, spoke-are only the tip of the iceberg. Our entire constitution has been creaking under the strain of old methods addressing new challenges for at least a generation. Ever since the massive majorities of Margaret Thatcher, we have had Governments who could, and did, ignore parliamentary process, with a tiny group of people-sometimes only one-taking decisions which no one dared to oppose and which were rammed through Parliament without proper debate.

A generation ago, Lord Hailsham spoke of the need to challenge and frustrate the tyranny of the elective dictatorship. That was echoed at a meeting here in Westminster last month by Professor Sir John Baker of Cambridge, who spoke of the "absolute monarchy" of the Prime Minister-not the present Prime Minister particularly but any Prime Minister. In calling for an independent constitutional convention, Sir John warned of the danger of constitutional reform being driven by the Government of the day-any Government of the day-who would inevitably tilt new constitutional proposals to suit their own party agendas. The point of a constitution, after all, is to set up a framework within which Governments can govern but can also be held to account.

However, constitutional reform has proceeded ad hoc, and at the whim of the Government whom the constitution is there to restrain, without anyone thinking through the larger issues involved. A thousand unintended consequences lurk in the wings. For instance, to cite Professor Baker again, a wholly elected House of Lords would not only rob Parliament of one of its present strengths-the presence of genuine experts-but throw all the weight for scrutiny on to the newly established Supreme Court.

In case anyone supposes that I am coming round to a covert plea for the continuation of Bishops in your Lordships' House, I shall make my own position clear. I would rather have a wholly appointed House of Lords from which Bishops were excluded than a 95 per cent elected House in which Bishops were still just included. Speaking precisely as a Bishop who is concerned for the health of our nation, I would rather have a second Chamber that can do its job without me, if need be, than one which cannot do its job even with me, if you see what I mean. Of course, I would rather have the best of both, and of course Bishops could still be appointed, as have been the noble Lord, Lord Sacks, and the Methodist Peer, the noble Lord, Lord Griffiths.

So what about an elected House? We have some excellent MPs, but many observers think that to fill another Chamber with more of the same, whipped to the will of the Government, would be worse than pointless. I am, in other words, much more concerned with the ability of the Lords to scrutinise legislation and hold the Commons and the Government to account than I am with the official place of Bishops within that House, although I believe that matters too.

The point is that our fine-tuned constitution is a complex ecosystem, and you can not play about with it without considerable risk. If we are to make changes, elected politicians are not the people to make them. The Canadian provinces of British Columbia and Ontario chose members of the public by lot for their conventions on electoral reform. They did a good job. We could do worse. Some think we already have.

Our present confusions have contributed strongly to what I can only call the decline of democracy in the West and in our country. We vote in decreasing numbers; I bet that where I live in the north-east there will be a record low turnout in May, as traditional Labour voters stay away in droves. That is what I am hearing. This breeds a crisis of legitimacy: even if the next Government have a clear parliamentary majority, they are unlikely to have been voted for by more than 35 per cent of the electorate. Faced with that, people who suppose that we can just rumble on and hope for the best, that we can tinker with this or that aspect of public life, that our present elected politicians are just the people to reorganise our constitution, that having a second Chamber consisting of more people voted for by one-third of the public will solve all our ills, or that any of the above will constitute genuine democracy, legitimate government and proper accountability are putting their heads in the sand.

The idea that voting every five years constitutes proper accountability is laughable. Most seats in this country remain pretty safe. We need the Government to be held to account by the Commons and the Commons to be held to account by the people on the one hand and by the Lords on the other. Only the last of those is working at the moment, and a cynic might say that the Government are now trying to stop it.

What about legitimacy? I find it depressing that speakers in your Lordship's House refer to "the elected House" as though we are somehow ashamed of our own less than fully legitimate standing. We are here according to our ancient constitution, modified as it has been over the years, to do a job that needs doing, which is to rescue the elected House from the tyranny of elective dictatorship and the rushing of important debates, such as this. The idea that voting, and only voting, confers legitimacy is a simplistic modernist slogan which we should resist.

When faced with these large issues, the smaller ones in the Bill look like window-dressing. The sideswipe against the 92 remaining hereditaries looks like a desperate attempt to achieve one last old Labour objective before new Labour runs out of steam. It breaks the undertaking that was given. The public perception of why your Lordships' House is so full is because over the past 10 years the Government have sent more people to this Chamber than other Governments in the same timeframe, unless I am much mistaken. The noises off that were made about the Act of Settlement are just that: noises off. Since the unsuccessful amendment was proposed by a Member who believes in neither God nor the monarchy, his plea for the sovereign's religious liberty rings a little hollow. Questions have also been raised about the disciplinary process for those who occupy these Benches. I assure the House that the reasons why there might be a different system for Bishops are because, technically, we are not Peers and because we have our own internal disciplinary system.

The one remaining point of great interest to many in the church concerns the possibility of alternative voting systems. Seven years ago, the General Synod of the Church of England voted by a massive majority to advocate proportional representation by single transferable vote. Many of my fellow Bishops have campaigned for this. I am myself very open to it. The discussion needs to be had. However, there is an oddity about holding a referendum on such a topic. Why will there be only two options? Will it be a first past the post referendum? If so, will those who do not like first past the post be acting against their conscience if they vote in the referendum? There is something curiously twisted and peculiar about that.

I end by re-emphasising the two basic points. First, any and all constitutional reforms should be undertaken only in the light of a full top-to-bottom constitutional review. Secondly, elected politicians are the last people who ought to be in charge of such a review, whether or not they are in washing-up mode. If there is an argument to be made for Bishops remaining in your Lordships' House it might be that, as well as having deep and constantly refreshed roots in actual local communities, we have the freedom to think outside the dominant secularist paradigm and say clearly what lots of other people are thinking.

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour 4:45 pm, 24th March 2010

My Lords, this grandly entitled Constitutional Reform and Governance Bill might perhaps better have been entitled the Constitutional (Miscellaneous Provisions) Bill. It deals with too many topics and has nearly doubled in size since it was introduced into the House of Commons. However, if the pudding lacks a theme we can, all the same, put in our fingers and pull out some plums. It is to the credit of the Government that, 150 years after the Northcote-Trevelyan report, they are legislating to place the Civil Service on a statutory footing. Indeed, it may make the Lord Chancellor seem to be acting in indecent haste if, as my noble friend promised, he very shortly brings forward proposals for an elected House after a mere 100 years since it was first proposed.

I trust that it is not too late to rescue the integrity of the Civil Service and the public service ethos. We have had 30 years in which Permanent Secretaries were to be "one of us"; in which Ministers were told that they should get their hands on management and delivery of policy; in which we have had wholesale marketisation of public services. We now have the antics of the Public and Commercial Services Union. And we have had the proliferation of special advisers.

A statutory code of practice for special advisers is long overdue. We can understand that a Minister might want a special adviser-someone to let his hair down with, to do the party stuff-but there are many too many of them. They get between Ministers and their civil servants; they get between Secretaries of State and their junior Ministers. They are neither elected nor appointed through a proper Civil Service process-indeed, under the legislation, they would be specifically excluded from the requirement of appointment on merit-and yet they exercise very considerable power, particularly as a cabal across Whitehall. They inject party politics and interest into too many decisions-that has been true of Governments of both parties-and they spin obsessively, intensifying the unhealthy symbiosis of Ministers and the media. We need a code of conduct, but we also need a strict limit on the numbers of special advisers. I suggest that one per department would be enough.

I support a referendum on the voting system. It is right to seek the judgment and authority of the people if the rules by which Members of Parliament are elected are to be changed. It is also right to improve the regulation of referendums. It seems reasonable to suppose that the widespread disaffection with our politics and poor turnout at elections have something to do with people's perception that their votes are wasted. Now, with campaigning increasingly targeted on a small handful of swing voters and the decline of door-to-door canvassing, I suspect that that perception is deepening. Whether or not the use of social networking techniques in the forthcoming election will change that, I do not know.

A merit of the alternative vote system would be that if people felt that their second, third or fourth preference might affect the outcome they would be encouraged to vote. As has been noted, it also has the virtue that it keeps the single-Member constituency. I am afraid that it would not necessarily follow from that that modern Members of Parliament will remember that their first duty is as parliamentarians in the House of Commons. The single-Member constituency is a particularly important influence on Ministers, requiring them, as it does, to touch base in the lives of the people that they govern. AV avoids the anti-democratic feature of proportional representation-that it provides disproportionate power to a minority of Members of Parliament. Would it have unforeseen consequences? Almost certainly-including that voters would find themselves electing a person that none of them actually wanted. However, this is worth a proper debate and it is right to give the people the choice about it. Of course, if at the forthcoming general election we have a high turn-out and a convincing result, the people may decide to keep first past the post.

The establishment of the Independent Parliamentary Standards Authority was a terrible admission by those elected to govern us that they cannot be trusted to govern themselves. Members of Parliament were bounced into this by party leaders in a panic, and reached the conclusion that they did in a fit of guilt and depression. If ever a piece of legislation was hasty and botched, it was the Parliamentary Standards Act 2009. This legislation on the IPSA is hasty; will it be equally botched? But is it for us to save the House of Commons from themselves?

I insist that the huge majority of Members of Parliament are motivated by the public good. That, of course, is the opposite impression to that created by the media. The journalists were right to expose abuse, but they were wrong to binge on destroying respect for Members of Parliament, and they have wrought deep damage to our political culture. Both Houses should punish abusers and reform their systems, but Parliament should not lose its nerve. I very much hope that this House will have the self-respect and self-confidence to retain responsibility for its own affairs.

I support the reforms to the House of Lords proposed in the Bill, which are based on the work of the noble Lords, Lord Norton of Louth, and Lord Steel of Aikwood, and to which some of us have also made a modest contribution. In modern Britain there can be no justification for the hereditary principle for membership of the legislature. But what is proposed in the Bill is not the expulsion of the hereditaries; it is a much more civilised proposal-if the work of the grim reaper can be called civilised.

I agree with the proposals on discipline-for suspension and expulsion-and with the proposal that Members of Parliament and Peers should be deemed "ordinarily resident and domiciled" in the UK for their tax status. I agree with the noble Baroness, Lady D'Souza, that the retirement provisions are urgent. This House is bursting at the seams and it will always need to welcome new blood. I support the amendment in the name of the noble Lord, Lord Steel, regretting the omission in the Bill of a provision for a statutory appointments commission. If this House is to continue to be appointed it should not be on the basis of prerogative or prime ministerial patronage, but on the basis of respectably constituted authority with its independence underpinned statutorily.

These proposals for reform of your Lordships' House have been extensively debated in this House and I believe that they enjoy the support of a large majority of your Lordships. There would not be much point in introducing these measures if an ill judged and bitterly controversial proposal to create an elected second Chamber in place of your Lordships' House were to pass. However, I do not think that such a proposal, while it may or may not be a useful electioneering gesture, will stand up to scrutiny or pass in due course.

Will the provisions for audited public expenditure strengthen the Public Accounts Committee of the House of Commons? The answer is uncertain, and it is one illustration of the need for close examination of the measures in the Bill. The limitation of that admirable committee is that it looks at matters of public expenditure only after the event, after the unsatisfactory event when something has gone wrong. It is the unique responsibility of the House of Commons to grant or withhold supply. Select Committees of the House of Commons should invigilate departmental spending and performance. Will the new Select Committees in a new House of Commons, elected after a new fashion, take that responsibility more seriously? I am not confident that they will, but if better information is available through more transparent financial reporting they will have less excuse for giving the Government an easy ride.

There are good plums in the Bill. It deals with major issues, but we are, as has been said, in a dilemma. The Select Committee of your Lordships' House has provided us with a most useful history of the legislation to date and a description of the process which has been unsatisfactory in important respects. It is the duty of your Lordships' House always to be sceptical about proposals for constitutional reform-not to be prejudiced against them, but to examine them rigorously. There is an all-too-fashionable illusion that constitutional reform will cure the malaise of our politics and our governance. No mechanisms or institutional tricks will ensure a flourishing democracy. For that, we need well judged policies and courageous and inspiring leadership.

We who are parliamentarians hold the constitution in trust. It is not the plaything of think tanks or a consolation prize for Ministers who dart from one brainwave to another and one press briefing to another like March hares. Constitutional change should not be proposed casually, enthusiastically, on a basis of checklists or opportunistically. It should not be considered hastily or superficially but on the basis of thorough and impartial thought. The British constitution of course changes and develops in response to experience and to demonstrable practical need, but constitutional change needs to be absorbed and tested phase by phase.

We are privileged to be Peers for life. In the field of constitutional reform, we have a particular responsibility to lay aside all prejudices and partial affections, to safeguard the spirit of the constitution and to advise when proposals are not thought through and fail to reflect the true interests of the democratic nations of the United Kingdom. I very much regret that Commons consideration of substantial parts of the Bill has been incomplete, notably on the Civil Service, referendums and ratification of treaties, and that the Government have not managed this legislation to allow your Lordships' House in Committee to fulfil its responsibility. I disagree very much on this with the noble Lord, Lord McNally. I do not think that, however much I personally may favour some of the measures in the Bill, its provisions should be waved through in a pre-election wash-up and a last-minute set of deals between the Front Benches.

Photo of Lord Howe of Aberavon Lord Howe of Aberavon Conservative 4:56 pm, 24th March 2010

My Lords, I endorse immediately the closing sentence of the noble Lord, Lord Howarth. The question of wash-up or not has come up a number of times. It is inconceivable that legislation in this state should be dealt with by wash-up.

It is ironic to reflect that the Lord Chancellor, opening the debate on the Bill in the other place, said:

"In 1997, the Government embarked upon an unprecedented programme of constitutional reform".-[Hansard, Commons, 20/10/09; col. 799.]

If ever a sentence was misleading, that was it. It suggested a calm consideration, now 12 years ago, with the agenda having been quietly laid out. One has only to put the sentence alongside a remark, already quoted, of the Constitution Committee of this House:

"This is no way to undertake the task of constitutional reform".

On that much, there must surely be total agreement. If ever there was something that did not need to be washed and that would be damaged severely if it went through the wash-up, it would be a Bill of this kind.

How should one tackle these proposals? We have heard a number of suggestions put forward by colleagues already. Nobody here so far, I think, has said, "Well, isn't it time we had a really complete examination of everything?". Some think tanks have already said that it is clear that we need a written constitution. It is presented as somewhere where we could resolve all the difficulties, knit them all together and at last solve everything with a clean, clear written constitution. I suggest that anyone advocating that course should have a quick word with the noble Lord, Lord Kerr of Kinlochard, who spent some of the best years of his life confronted by the attempt to establish a constitution of the European Union. I had a similar, but much more humble, experience together with the noble Baroness, Lady Williams. We were both on the advisory council of the Supreme Rada of Ukraine when it had disintegrated and been reborn. We were seeking to advise it on how to create its constitution. We had a free hand, because there was nothing to obstruct us. It had not had such a thing, or, if it had, we did not know anything about it. Everyone who has attempted to create a constitution in that way is faltering and barking up the wrong tree.

The question is better answered by saying that these matters must be considered step by step, although not necessarily one by one. If we look at the history of the past 20 years, we see that some of the important steps taken have created a new arrangement that has turned out to be right. They were not taken all at the same time. For example, the invention of life Peers opened a new door for the structure of this House. The removal of a large number of hereditary Peers, with the arrival of the present Government, was another. Along the way we have been able to address some things gradually in that form.

It is worth noticing that some of the most sensible changes-not just in this constitutional area, but elsewhere as well-have been made and can be made by convention. Sometimes we are driven to seek specific provisions to define situations precisely and closely. The Joint Committee under the chairmanship of the noble Lord, Lord Cunningham, addressed the conventions regulating relations between the two Houses in great detail and set them out in clear form. It also addressed the question of whether they should be codified and put into statutory form. That was rejected. Conventions have a value and should not be scorned.

In two areas that have been touched on, conventions have a real part to play. One is in defining the role and management of the office of Attorney-General; the other is in handling the office of Lord Chancellor. Both those institutions are best handled not by seeking to codify how they behave, either separately or in relation to each other. I will come back to that in a second.

We seem to be permanently dogged by the question of nomination or election-one or the other, or both. If one looks at the Bill as it now stands, there is a curious contrast. In the part dealing with this House, there are five separate provisions about the way in which people may leave the House but only one about their arrival in the House, which is an odd structure. What is missing is the proposal made by the noble Lord, Lord Steel. Clearly, if the House is to have any appointed Members-and that would seem to be, if not universally accepted, very widely accepted-we need an institution of that kind. The question still remains. If we accept the Steel skeleton as it is embodied in the Bill and if we include the amendment that he proposes, that is a sensible way to go. However, we are still left to look at this recurrent, emotional enthusiasm that lies behind the concept of an elected second Chamber.

The experience of the last few years shows the number of pitfalls in the management of our electoral system. The collapse of confidence in the elected House-not entirely excluding us-shows that election is not regarded by many people as the best and most secure way of creating Members of this House. It is interesting to look back at the comments made by bodies that looked at this question carefully. A number of colleagues have spoken sympathetically about the Wakeham commission report, which certainly deserves commendation and re-examination. On the election question, it made this observation. Elections, it said,

"seldom deliver results which are gender-balanced, or provide appropriate representation for ethnic, religious or other minorities".

Moreover, they are,

"unlikely to produce members who are able to speak directly for the voluntary sector, the professions, cultural and sporting interests and a whole range of other aspects of society".

The truth of that is scarcely arguable; it comes from a detached and objective scrutiny body. Alongside that, however, the Public Administration Committee of the other place, in its 11th report, reached two conclusions. First, it identified the need,

"to ensure that the dominance of Parliament by the Executive, including the political Party machines, is reduced and not increased".

That is objective 1-reduction, not increase, of the dominance of Parliament by the party machine. Secondly, the second Chamber must be,

"neither rival nor replica, but genuinely complementary to the Commons", and, therefore, as different as possible. Those two propositions come not from this House but from the other place, describing how this House should be composed. One can start from that premise and seek one way or another. It may take some time to find agreement on this crucial issue. We have been able in a number of contexts to find agreement, but this is a fundamental that needs to be addressed again. Certainly, we need to have the additional provision put forward by the noble Lord, Lord Steel.

What about some of the other provisions, which have not really been addressed so far, on the offices of Lord Chancellor and Attorney-General? Both of those have a most important part to play on the line between law and politics and on the maintenance of mutual confidence between the two. Their existence is not incompatible with the separation of powers and their relationship is shaped by convention. The Attorney-General's office has been considered in the procedures that have taken place so far without any conclusions having yet been reached. I still have some modest memory of my two years as Solicitor-General, serving with the late Peter Rawlinson as Attorney-General, who had a clear insight into the nature of the office.

It is clear that the office of Attorney-General requires to earn the respect of professional and legal institutions and the respect and understanding of the parliamentary institutions. Therefore, that office should go to someone holding merits in both those categories and, ideally, serving in the other place. He or she should certainly be of Cabinet rank, although certainly not-and nobody argues with this-a member of the Cabinet. There has been some collapse in the convention about whether he or she should attend Cabinet. The convention was that he did not go to the Cabinet as a matter of course but went on invitation to discuss particular issues. I occasionally had to argue with some difficulty with the Lord Chancellor, who often had a view of his own. Nevertheless, the Attorney-General was the man of authority invited to present his conclusions on those issues. That is the position that should be maintained. In the past year, we have had the pattern of the Attorney-General sitting in regularly in the Cabinet, which has not been a satisfactory state of affairs. It is the kind of thing that can be resolved by looking at, establishing and maintaining a convention. If we should try to spell that out in statute, taking account of all the nuances, who knows where parliamentary counsel might take us?

The other issue is with the Lord Chancellorship. The disappearance of that office in the form that we knew it has been one of the most serious mistakes made in the progress of rather reckless constitutional amendment. The noble Lord pointed out that the Prime Minister no longer has a role to play in the appointment of judges, which relates to one of the provisions in the Bill. One can understand the welcome for that. One can also understand-and I would certainly endorse-the changes made in the procedures for the appointment of judges at the same time as the office of the Lord Chancellor has disappeared. They have probably become too complicated, but it was right to have the interposition of proper examination of candidates for those appointments. If there is anyone who should have the responsibility for steering them to their destination from time to time, it should be someone with the qualifications of the Lord Chancellor as we all used to know him-a distinguished legal figure but, equally, a distinguished, reputable and respected political figure. If one looks at the names of those who have held the office in recent times, one sees that they have all carried respect, starting with Lord Hailsham, Lord Elwyn-Jones and Lord Havers-one could go through them all. They were people who commanded not just the respect of their profession, but much wider respect as well.

For that office to have been altered by the removal of the obligation to sit upon the Chair in this House, I can well understand. That worked quite well while it was there, but it was not necessary. For the Lord Chancellor to be in a position to preside over the Supreme Court also was open to criticism, even if he did not consider cases that involved the Government in any way at all. It was an institution that worked in that way and played a crucial part in managing potential conflicts between the Executive and the judiciary.

The relationship between the Lord Chancellor and the Lord Chief Justice was well understood and regulated by convention. As soon as that relationship was removed, the poor Lord Chief Justice had immediately to expand his office and the situation changed fundamentally. I would argue that those sorts of institutions could be well governed by reference to convention, along the lines that I have suggested, and that we need to come back, not in a desperate search to cram it all into this dish just waiting to go into the dishwashing machine, but thinking carefully about the way forward. We have not made significant changes, in many respects. Most of the changes in the so-called Steel Bill and many of the changes in the Bill before us need to be considered in an orderly and well considered fashion.

I shall close by referring, although not out of any sense of frivolity, to one curious feature. The legal committee of the Council of Europe addressed itself at some length some years ago to the legitimacy of our constitution-both of the Lord Chancellorship and of the marriage between the Supreme Court and the legislature. It concluded that they were not compatible with the separation of the three principles on the Montesquieu line. It is rather interesting to see the way in which the committee expressed its conclusion. It said that the unusual aspect of the Lord Chancellor's position,

"is due to the specific conditions of the United Kingdom constitutional system, which has evolved over centuries without the beneficial modernisation introduced by the French Revolution, the effects of which were disseminated in the rest of Europe by Enlightenment thinking and the conquests of Napoleon".

One can hardly contemplate a less respectable source of enthusiasm for changing the office of the Lord Chancellor than a reference to Enlightenment thinking and the conquests of Napoleon. Any attempt to remove the office that was motivated by that would be profoundly misguided.

We need a clear definition of the office of Attorney-General. In my judgment, he should be, as he always has been, in the other place. His presence and his familiarity to his colleagues in the other place make him much more likely to be respected, because he will be judged among colleagues in that way. Likewise, the Lord Chancellor, in my judgment, should once again be in this place. I do not visualise that involving any conflict whatsoever, either with the Supreme Court or with the Lord Speaker of this House. A senior legal figure in each place, capable of handling that important frontier between law and politics, seems to me to be something that we ought to cherish.

I am quite clear that the Bill as it stands, although it may contain some very worthy considerations, does not deserve to go through the traditional wash-up process. It should be handled respectfully, allowing us to concentrate on the agenda that still remains, which is to restore the confidence of the people in this House, in politics and in Parliament.

Amendment to the Motion

Moved by Lord Steel of Aikwood

As an amendment to the Motion that the Bill be now read a second time, at end to insert "but this House regrets the omission from Part 5 of the Bill of a statutory Appointments Commission".

Photo of Lord Steel of Aikwood Lord Steel of Aikwood Liberal Democrat 5:15 pm, 24th March 2010

My Lords, in order to keep my own speech within a tolerable length, I propose to talk only about Part 5 of the Bill, tempted though I am to refer to other matters.

As other noble Lords have already indicated, the Government have adopted three of the four central points of the Bill that I twice presented to this House in the previous two Sessions of Parliament. The point that is missing is the creation of a statutory appointments committee. I am grateful, as I am sure are most noble Lords, to the hardworking Library of the House, and I am grateful for the paper that it produced showing the commitments made by the present Government to reform of the Lords since we last made changes in the 1999 Act. I shall list these so that we know exactly where we have arrived at.

The first reference was in November 1999 in the Queen's Speech, when the Government said that they were committed to further reform and looked forward to the publication of the report of the Royal Commission. In January 2000, the Wakeham commission duly published its report, and I agree with my noble friend Lord McNally that it is a pity that that was never really pursued.

The second reference was in May 2001 in the Labour Party's election manifesto:

"We will put the independent Appointments Commission on a statutory footing".

The third reference came in the Queen's Speech following that election, in June 2001, which said that the Government would,

"introduce legislation to implement the second phase of House of Lords reform".-[Hansard, 20/6/01; col. 6.]

The fourth reference was in November that year when the White Paper was published that included the creation of a statutory appointments commission. The fifth reference was in July 2003 when the Government published their response to the Joint Committee on Lords Reform and included a commitment to consult in the autumn on proposals for a revised appointments commission.

The sixth reference was in September 2003 when the Government published a consultation paper that said that they would establish a statutory appointments commission, accountable to Parliament rather than to Ministers. The seventh reference came a little later, in the next government White Paper in February 2007, which referred to,

"a new independent ... Appointments Commission, reporting directly to Parliament".

The eighth reference came in December 2007 when the House of Commons Public Administration Select Committee said in its report:

"Our main proposal is for an immediate House of Lords reform measure, clearly defined in scale and scope. Its primary purpose would be to put the independent House of Lords Appointments Commission onto a statutory footing, and empower it to take decisions on the size, balance and composition of the House against agreed and explicit criteria. A mechanism is also needed for peers to resign from the House-or, in some circumstances, to be compelled to leave".

The ninth reference was in July 2008, when another government White Paper was published that included proposals to establish a new independent statutory appointments commission.

So there we have it: nine specific references to Lords reform in over a decade which include a statutory appointments commission. Yet the noble Lord, Lord Bach, with a completely straight face-I wrote down his words; I could not believe them-said that the Government have "kept up the momentum". That is a completely new definition of "momentum" for me.

Suddenly we have the Bill, and all these promises have been dropped. The statutory appointments commission has disappeared. I submit that this is a fatal mistake, for two reasons. First, it is important that the appointments commission should have statutory powers-I look forward to hearing from the noble Lord, Lord Jay, as current chairman of the commission, who will follow me. The fact is that the commission has had to make its own rules as it goes along; they have never been debated or discussed in this House. I do not want to open up a can of worms, but we are all now well aware that undertakings were given to that commission by the noble Lord, Lord Laidlaw, and the noble Lord, Lord Ashcroft, that were simply not followed through. The commission itself has no means of ensuring that undertakings given to it are implemented, and it has no power of redress if they are not. That is a fact.

The second reason why I tabled this amendment is that the timing is all important. I have no doubt that the noble Lord, Lord Bach, in summing up, will tell us that we do not need an appointments commission now, because Mr Straw is going to produce not even a draft Bill but sections of a draft Bill, suggesting that this House should be replaced by a wholly elected House. Let us be realistic. We are about to have an election. If the present Government are re-elected, everybody accepts that this will be by a very slender majority. Are we seriously to believe that a Government re-elected with a tiny majority, in the middle of a financial crisis, given its past record of immobility on these minor reforms, are suddenly going to plunge into the creation of an elected Chamber? I simply do not believe it. It is much more likely that the publication of that Bill will simply prove that Mr Straw has caught up with Mr Asquith. That is all that it will show.

If the election produces a Conservative Government, we have already quoted Mr Cameron saying that it is not a priority and telling his MPs that it might be a matter for a third term. The last time we debated this, the noble Lord, Lord Strathclyde, got so agitated during the Committee stage of my Bill that he said he would rush off and see Mr Cameron to see that this could be put right, and that an elected House could be brought forward as a matter of haste. Since then, the noble Lord has maintained a discreet and careful silence on that subject. The fact is that we are not going to get an elected House in the very near future. That is why appointments are going to continue, whether we like it or not, and that is why the appointments commission should be, as promised, put onto a statutory basis. That is all I want to say on that topic.

I turn to the other three issues which appear in the Bill and which I call running repairs. I pleaded, publicly and privately, with Mr Straw for the Government to take over my Bill. If they had done so, we would have had these provisions on the statute book by now. We would have made progress. Unfortunately, they did not. Clauses 54 and 55 deal with the matter of expelling serious lawbreakers, on the simple basis that the House of Commons already does that, and that we cannot accept the principle that lawbreakers should be lawmakers. I do not think that there is any great disagreement in the House that those clauses are therefore desirable.

Clauses 56 and 57 deal with the retirement of Members from the House. This was taken up from my Bill, but unfortunately it was slightly mucked up, because they have introduced into the Bill something which was not in mine, which is the wholly new idea of disclaiming peerages. If they went back to the wording which the noble Lord, Lord Norton, drafted in my Bill, they would find that there is no reference to disclaiming peerages. The noble Lord, Lord Henley, suggested that the provision in the Government's Bill would enable what I call "flipping Houses"; that is, enabling people to move from one to the other. He may be totally unjustified in that accusation, but I beg the noble Lord, Lord Bach, to pay attention to what the noble Lord, Lord Henley, said, and to listen to what Mr Dominic Grieve said in the Commons in the debate on the Bill there. Talking about allowing life Peers to resign, he said:

"There must be a period between resignation from the House of Lords and return or re-embodiment in this Chamber. There should be a period during which that return is not permitted. It is likely that that matter will be returned to in another place. If there is no time, and we get to the wash-up and there have to be discussions about issues in the Bill, that is one that will have to be sorted out to our satisfaction if the Bill is to go on the statute book."-[Hansard, Commons, 2/3/10; col. 905.]

I simply plead with the noble Lord, Lord Bach, to pay attention to that, because it is important, for the interests of this House and for the reasons ably described by the noble Lord, Lord McNally, and indeed by the noble Lord, Lord Bach, about the size of the place. We cannot seriously contemplate having over 800 Members, so the right and means to retire from the House is an important provision which should not be lost because of a minor disagreement about the wording in the Bill. I hope that the Government will get this right and pay attention to what the Conservative Party has said.

It is too important to lose that item from the Bill. We must get the numbers down. As we well know, Members have not been able to retire; my noble friend Lord Phillips of Sudbury made an attempt, but the fact that he is still here today shows that he failed. We look forward to what I call his resurrection maiden speech. This really is an important issue, too important to be lost in the wash-up.

The third item from my Bill which is included here is much more controversial-the question of ending the hereditary by-elections. Here I must admit that during the debates on my Bill, I missed one very important point, which I want to dwell on today. The undertaking that was given by the noble and learned Lord the Lord Chancellor in March 1999 referred to the 90 hereditary Peers remaining; it did not refer to the by-elections. The noble and learned Lord, Lord Irvine of Lairg, talked about,

"the interim retention of one in 10 of the hereditary Peers, 75 out of the existing 750, plus 15 hereditary office-holders, until the second stage of House of Lords reform has taken place. The amendment reflects a compromise negotiated between Privy Councillors ... and binding in honour on all those who have come to give it their assent".

That has been used frequently to defend the by-elections. The fact is, that was referred to in the Second Reading of the 1999 Bill which did not contain any reference to the by-elections. The noble and learned Lord went on to argue:

"The compromise will enable the elected 75 to participate in our counsels and to vote as the stage two plans are developed and debated".-[Hansard, 30/3/99; col. 207.]

Indeed, in the wind-up to that Second Reading debate, my old friend, the late and much lamented Lord Mackay of Ardbrecknish, said that the Conservatives would table later amendments to the Bill to try to improve it, especially concerning arrangements for maintaining the number of excepted hereditary Peers in the House, should the transitional phase endure for longer than expected. That underlines the point that the whole question of the by-elections came later and was not subject to the undertaking given by the then Lord Chancellor which we have quoted so often during debates on my Bill.

When Lord Weatherill was introducing his amendment two months later, he said:

"We did so because we envisaged that the arrangements would be temporary".-[Hansard, 11 May 1999; col. 1089.]

Later in that same debate, the Lord Chancellor said something that I want to quote in full because it makes interesting reading. He said during the Committee stage of the Bill:

"The traditional House which will be created as a result of the Bill will be exactly that: transitional and not permanent. The Government are absolutely committed to moving to stage two in the reform process. Press speculation that that may not be so is fanciful and without any foundation at all. The notion that the Government would even contemplate the notion of the Weatherill amendment becoming a permanent settlement, as distinct from a short-term compromise, is fanciful.-[Hansard, 11/5/99; col. 1092.]

That was 11 years ago. In the debate on this Bill in the Commons, Mr Straw said that he wanted to correct me for suggesting that this was intended as a temporary measure. I hope that the quotations I have given will sustain my argument that it was intended as a temporary measure and that the by-elections have now, in Jack Straw's own words, become risible and long since outlived their usefulness.

It would be wrong of me to end my quotations without referring to my noble friend Lord Rodgers of Quarry Bank, who is sitting beside me. He was leading the Liberal Democrats at the time and was almost a lone voice on this issue. He said:

"The noble Lord, Lord Weatherill, referred to them as 'temporary provisions'. The noble and learned Lord the Lord Chancellor made it plain today, using strong words, that this would last only through the transitional House and that the transitional House would be brought to an end in the next Parliament. However, if I were a betting man I would lay long odds that if Amendment No. 31is carried"- that was the by-election amendment-

"there will still be hereditary Peers in this House in 10 years' time and possible for much longer".-[Hansard, 11/5/99; cols. 1099-1100.]

How right he was.

In view of all that, we really should rescue what we can of the limited reform proposals, which the House debated so many times, during the wash-up. The by-elections have become ludicrous; they have made the rotten borough of Old Sarum look positively respectable in comparison. It is important that, during this inevitably long debate, Members can express themselves in favour or otherwise of the four items which I have put forward for repair of your Lordships' House. I beg to move.

Photo of Lord Jay of Ewelme Lord Jay of Ewelme Crossbench 5:32 pm, 24th March 2010

My Lords, there are many aspects of the Bill on which I am tempted to comment but, like the noble Lord, Lord Steel, I shall confine my comments to the provisions relating to the future of your Lordships' House. In that context, I declare an interest as chairman of the House of Lords Appointments Commission. To start with, I very much recognise the force of the arguments expressed by the Constitution Committee about the lack of full discussion of issues of constitutional significance. I merely note that there are, in the Bill, some genuinely important principles and if we were to lose them it would be a great mistake. I therefore wish the wash-up well. I shall comment on two aspects which are within the Bill and one which is not, but which is in the amendment being proposed by the noble Lord, Lord Steel.

My first comment on what is in the Bill relates to the provision for a Peer, whether life or hereditary, to resign from the House. I support that provision. Why? There are at present, as noble Lords have already said, some 700 Peers eligible to sit in your Lordships' House and, often, 400 or more are present. Those figures may of course increase after the election; indeed, I suspect the question is not whether they will increase but by how much. It seems to me that the ability to resign from this House would allow Ministers to leave it once they have fulfilled their ministerial duties and want to take up careers elsewhere. It would allow Members of this House, even if not Ministers, to resign to pursue interests which they judge would not leave them time to play an active role in the House, and allow those who have played an active and highly effective role in this House but who are, for whatever reason, now unable to do so to hand over to others.

I recognise that we do not know the exact impact of any such measure, and that there are other means of reducing the numbers of this House, but I believe that the measure before us would reduce the total number of Members of your Lordships' House and allow some greater room for the appointment of others, whether through the political process or through the Appointments Commission to the Cross Benches. That could in turn broaden the experience and expertise of the House and ensure that it better reflects the diversity of this country.

Secondly, I support the tax provisions in the Bill in so far as they relate to the House of Lords. The two principles which seem to me important are that a Member of Parliament-in whatever House-should pay taxes in the country that he or she is representing, and that the position of each Member of the House should be clear on that. I believe that the provisions in the Bill meet those points.

Finally, I shall comment briefly on a point that is, I regret, not in the Bill but which is the subject of the amendment put forward by the noble Lord, Lord Steel. It is the view of the Appointments Commission that its job in recommending appointments to the Cross Benches and in vetting recommendations by the political parties is of sufficient importance for us as a commission to be accountable to the House itself, and not to the Prime Minister. I was unaware of the nine specific references in the past which the noble Lord, Lord Steel, has given us today, and for which I am extremely grateful.

I have made this point on the Floor of the House, to the Public Administration Select Committee in the other place and, most recently, to the Constitution Committee in your Lordships' House. I have long believed it important that, as chairman of the House of Lords Appointments Commission, I should be accountable to a committee of this House as well as to a committee of the other House, and I am grateful to have been given the opportunity to give evidence the other day to the Constitution Committee.

I support the amendment proposed by the noble Lord, Lord Steel.

Photo of Lord Lea of Crondall Lord Lea of Crondall Labour 5:36 pm, 24th March 2010

My Lords, first, I thank my noble friend for responding to my earlier question about the precedents for wash-up and the way in which that might work out in the next couple of weeks. I still think that he could say a bit more about the transparencies of its modalities-in other words, is it not in the modernising context necessary to hear a little more about how the wash-up takes place? Does it produce minutes, how does it work and so on? To take the example of hereditary by-elections, I would think it rather outrageous if the matter were not subject to any logical objection in the House. The noble Lord, Lord Steel of Aikwood, to whom I pay full tribute for both his assiduousness and his command of the material, has pointed out that there is no rational case, even though it keeps being mentioned in passing, for opposing the suspension of by-elections.

I support the overall thrust of the Bill with a couple of reservations. The main point that I wish to make in support of the noble Lord, Lord Steel, is that it is not just in the abstract that we want a statutory Appointments Commission. Following directly from what the noble Lord, Lord Jay of Ewelme, said, the Bill lacks coherence because there is no reference to a statutory Appointments Commission. My noble friend mentioned in his opening speech that he wants to reduce the size of the House. There is no way at the moment that anybody has the authority to agree what the number of new entrants to this House should be. Even the committee chaired by the noble Lord, Lord Jay of Ewelme, cannot invent the numbers as it goes along. He will perhaps correct me if I am wrong but that would appear to be the prerogative of the Prime Minister, the other parties and so on. We cannot seriously keep paying lip service to reducing the size of the House. There is an old saying that hypocrisy is the honour paid by vice to virtue. The more we say we want to reduce it the more we know we will do nothing about it. We would need to have some idea of the numbers.

In that connection there is no democratic deficit on the balance of the parties. Taking the 20-year average we have around 210 Labour, 200 Conservative and 75 Liberal Peers, or thereabouts. That is a sort of proportional representation. In what sense is there a democratic deficit? There is a democratic deficit in the way that the parties lack transparency over how people get here, and the way in which the ownership of how people get here-in the Labour Party, for example-leaves something to be desired. The Labour Party is not unique in that. There is an element of something done by the Liberal Democrats which other parties could look to, while having regard to their own constitutional backgrounds and history.

What we cannot do is accept from Mr Jack Straw the idea that we can somehow legitimise the second Chamber by election and then castrate it. If the idea of legitimisation is to give us a certain authority in constitutional form, but we then want to rely on the primacy of the Commons, I repeat that the slogan on which we are going forward is, "Legitimise it and then castrate it". I do not suppose that there would be much support for that hypothesis if it was spelt out in that way, if that is the truth, which I think it is.

The statutory Appointments Commission has been dealt with many times. I have only one point to make in connection with it, just so that there is no misunderstanding with our own Front Bench. The amendment to the Bill of the noble Lord, Lord Steel, moved in Committee on 29 April last year in my name and those of the noble Lords, Lord Steel and Lord Norton of Louth, inserted a clause-adopted unanimously-that set out the procedure to be followed by the commission in respect of party-political nominated Members. The clause stated:

"(1) A political party, having been given an indication by the Commission that it is invited to propose a certain number of new life peers"- let me call it X-

"shall submit to the Commission a list comprising that number of names.

(2) Provided that the proposed names meet the test of probity, the Commission shall then make these recommendations to the Crown".

We then had an exchange of correspondence with the predecessor of the noble Lord, Lord Bach, namely the noble Lord, Lord Hunt of Kings Heath. He said:

"The proposal of the noble Lord, Lord Steel, embraces a statutory Appointments Commission that would decide which party-political appointments could be made. I have to say that that is entirely unacceptable to the Government".-[Hansard, 27/4/09; col. 3.]

I labour this point because no more should we hear the repetition of that deliberate canard. That is most demeaning for Members of this House.

I support the AV proposal. I do not think it will work out quite as the noble Lord, Lord Henley, thinks. The geographical dispersion of the Liberal Democrat vote has changed in the last 50 years. We are, perhaps, looking at a world of the past if we suppose that there will be one result or another. The extra democratic dimension would be self-evident to people in a pub in Burton-on-Trent-namely, that someone has to get 50 per cent. That is game, set and match. I might have my hesitations about the logic if I thought it would damage the Labour Party, but I do not think it would. The proposal should be supported on its merits.

I will say a word on taxation and then conclude. I very much support the general idea but, having regard to my knowledge of the case of my noble friend Lord Grenfell, I am surprised that-to use a cliché-in this day and age European residence is somehow the same as residence in Belize or the Virgin Islands. In the next 20 or 30 years there will be more and more people in the world who may spend part of their year in Dusseldorf or some place. Certainly, this would not work if you lived in Luxembourg, Holland or Belgium. It does not work in the world of industry, or even that of trade unions. My great friend John Monks, the general secretary of the TUC for 10 years, is now general secretary of the European Trade Union Confederation. I imagine that if he came into this House he would, at the same time, leave his job in Brussels. People accumulate commitments around Europe a lot more than they did, and we could ring-fence the European Union in some way in seeing how this would be implemented.

Photo of Lord Denham Lord Denham Conservative 5:45 pm, 24th March 2010

My Lords, I am going to limit what I say to Part 5 of the Bill, "The House of Lords", and, of that, only Section 67 which deals with the elected hereditary Peers and their replacement. Having looked at that part of the Bill itself, I then took up the Explanatory Notes to see what justification was given for the breach of one of the most solemn undertakings given by any Government over my 60 years in Parliament. I looked in vain, but that was hardly surprising. Such a justification does not exist.

When I first heard from my noble friend the then Leader of the Opposition about what was subsequently, though mistakenly, to be called the Weatherill amendment, I had severe doubts as to whether one should on any terms allow a Bill of such constitutional importance through in a hurry, but I subsequently changed my mind, because it would give at least a handful of hereditary Peers some say in what the shape of the House that they and their confreres had all served should be.

In quoting the excerpts from the Second Reading speech of the noble and learned Lord, Lord Irvine of Lairg, I should like to assure him that I and, I think, my noble friends regard his conduct throughout the passage of that Bill, and ever since, as impeccable. We could only wish that his own party had treated him more recently in the manner that he was entitled to expect.

The noble Lord, Lord Steel, is wrong. The deal was a deal in its entirety. To try to pretend otherwise is to deceive himself. He will not deceive others. Let me read those words together with the rest.

The noble and learned Lord, Lord Irvine, said:

"The amendment reflects a compromise negotiated between Privy Councillors on Privy Council terms and binding in honour on all those who have come to give it their assent. Like all compromises it does not give complete satisfaction to anyone. That is the nature of compromise".-[Hansard, 30/3/99; col. 207.]

Photo of Lord Steel of Aikwood Lord Steel of Aikwood Liberal Democrat

I think that the noble Lord misunderstood the point I was making. The quotation he gives is quite correct, but it was at the Second Reading of the Bill. The by-elections were not there. They were not part of the undertaking. They were not part of the negotiations.

Photo of Lord Denham Lord Denham Conservative

My Lords, the negotiations went on throughout the course of the Bill. I was around at the time. I am so sorry; the noble Lord, Lord Steel, may wish to confuse himself like this, but it just simply is not true. This was an honourable meeting between parties to try and work out a way to get the Bill through in the best possible way and in the most reasonable time.

Let me continue:

"Let me attempt to explain its rationale. We have always intended a stage two reform to a reformed upper House. Others questioned our genuineness. Although I know as well as anyone the honesty and firmness of our intention, I was not offended by those who claimed to perceive a risk that removal of the hereditaries might prove to be the only reform to take place. All who have assented to this compromise would justify it in their own ways, but I believe what it comes to is the following ... a compromise in these terms would guarantee that stage two would take place, because the Government with their great popular majority and their manifesto pledge would not tolerate 10 per cent. of the hereditary peerage remaining for long. But the 10 per cent. will go only when stage two has taken place. So it is a guarantee that it will take place ... to insist on fulfilling a manifesto pledge by one step, not two, would bring down the curtain unceremoniously on the whole of the hereditary peerage, many of whom, and whose forebears, have given so much to this House and to public life. The compromise will enable the elected 75 to participate in our counsels and to vote as the stage two plans are developed and debated. It will allow those who do not stand, or who are not elected, to depart with dignity, not querulously, and without rancour".-[Hansard, 30/3/99; cols 207-8.]

If anyone would suggest that the passage of time can release a Government from such obligations, let me say this: it is not the fault of your Lordships' House that, once the Act was on the statute book, no further effective steps toward stage two of reform took place. It was entirely due to the inaction of the Government and to no one else. It is my belief that once they got rid of the hereditary Peers they lost interest in your Lordships and set their sights on other things such as wrecking the judiciary and bringing another place into the 21st century.

Be that as it may, the Royal Commission, chaired by my noble friend Lord Wakeham, which had been running in parallel with the Bill itself, reported by the end of December 1999. This was to have been followed as soon as may be by a Joint Committee of both Houses of Parliament which was to have provided a sort of committee stage to the Wakeham report. This was put off and put off again until, in September 2001, it was announced by the then Leader of this House, the late Lord Williams of Mostyn, that it would be dropped altogether. This in itself was a breach of an undertaking. I came down overnight from Scotland to remonstrate with Lord Williams. He saw me with his invariable charm and courtesy, and gave me a good three-quarters of an hour but he was adamant. I warned him that the whole idea could go cold and lose momentum if it was dropped then-and how right I was proved to be.

Finally, the Government had no option but to reincarnate the Joint Committee, which reported on 4 February 2003 with the now infamous list of options: all elected; all appointed; 80:20; 20:80; 60:40; 40:60; and 50:50. This had the equally infamous result that Members of another place voted down the whole lot of them. It took that great man Robin Cook, who was Leader of the House at the time, to contribute the panegyric,

"We should go home and sleep on this interesting position. That is the most sensible thing that anyone can say in the circumstances. As the right hon. Gentleman knows, the next stage in the process is for the Joint Committee to consider the votes in both Houses. Heaven help the members of the Committee".-[Hansard, Commons, 4/2/03; col. 243.]

I end by repeating just one of the noble and learned Lord's Second Reading sentences again.

"The amendment reflects a compromise negotiated between Privy Councillors on Privy Council terms"-

I hope your Lordships who are privy counsellors will already know but those of your Lordships who are not will realise just exactly what that means-

"and binding in honour on all those who have come to give it their assent".-[Hansard, 30/3/99; col. 207.]

At a time when we are all trying to restore the old moral value to Parliament, I think your Lordships would realise that Her Majesty's Government renege on these words at their peril.

Photo of Lord Maclennan of Rogart Lord Maclennan of Rogart Spokesperson for the Cabinet Office, Spokesperson for Constitutional Affairs, Spokesperson for Scotland 5:54 pm, 24th March 2010

My Lords, the Prime Minister recently indicated that he was personally in favour of a written constitution. I am bound to say that I think he is right. The arguments for that are greatly strengthened by the piecemeal approach to reform that we have observed over the past 13 years. I was very struck by what the right reverend Prelate said earlier about the mode of making these changes to our system. It is correct that they are not likely to deal with the problem of trust, on which the Minister laid great emphasis in his opening remarks, if they do not include at least a proper dialogue with the public.

In the brief time that I propose to speak, I want to say that I very much regret that issues of constitutional reform have become so divisive between the political parties, between the Houses of Parliament and between Government and Back-Benchers. I refer particularly to the way that the Government have treated the Public Administration Select Committee chaired by Tony Wright, which has produced most thoughtful reports on how change might be made in a progressive fashion. I believe that if we are to have a constitution which is apt to deal with the extreme complexity of government, we have to recognise that it requires deliberation, dialogue and partisan considerations to be vented, certainly, but also to be put firmly in their place and made clear.

It is true that for a long time my party has considered that we in this country cannot hope to improve the quality of government or to increase the delivery of what the public have voted for and expect to see without significant changes in the way that Governments do business. It seems to me that in this Bill the Government have rather lost sight of the purpose of constitutional reform. It is about improving the quality of government and making it more accountable and responsive to the people who make up our democracy.

In a speech with which I sympathised at the beginning of this debate, the Minister, the noble Lord, Lord Bach, emphasised heavily the nature of the circumstances in which we are considering these matters: the loss of trust of the public. It has to be said that I doubt whether bringing forward such measures at this time will of itself contribute to a restoration of trust, and that must be very much regretted. It has obviously been a scramble. When I was appointed to the Joint Committee nearly three years ago to consider the Constitutional Renewal Bill, it never occurred to me that we would have to wait so long to consider in detail in Committees of both this House and another place the most central issues in that Bill relating to the Civil Service. It might have been wise if at that time the Government had recognised the degree of support that there was for that part of the Bill-now Part 1 of this omnibus Bill that we are considering-and had treated it as of sufficient importance, and having gained sufficient consensus, to merit enactment. There are matters before us in this Bill on the Civil Service which are not entirely satisfactory but which I think could easily have been taken out or corrected if there had been a proper opportunity to consider that part of the Bill with deliberation. The Constitution Committee of this House has drawn attention to the report and suggestions of the Public Administration Select Committee on, for example, the powers of the Civil Service Commission. It pointed to the desirability of the Civil Service Commission having a power to investigate matters affecting its role at its discretion. That does not appear in the Bill, and it clearly should.

The Bill provides for the appointment of Civil Service Commissioners on merit, but it does not say anything about promotion, and that is clearly an integral question. It ought to have been spelled out in statute when we are seeking to put the Civil Service on a statutory basis. Another example to which the committee drew attention was the Public Administration Select Committee's proposal that senior appointments from outside the Diplomatic Service should be limited in number to three. That would certainly differentiate us from our friends in the United States. It got great backing and considerable understanding. These are matters that I do not regard as make-or-break in the Civil Service part of the Bill, but they are important and they should have been considered in the regular way.

We have to recognise the disadvantages of doing constitutional reform in such a hurry. I heard the intervention from the former Speaker of another place. She asked whether a constitutional Bill has been handled in this way in the wash-up. I think there ought to be a good deal of the Bill in the wash-up because the Civil Service part of it makes a great deal of sense and there are parts that deal with the crises of the moment that ought to be recognised and enacted. They could be called tidying up operations. For some time, my noble friend Lord Steel has put forward arguments about how this House ought to operate prior to the wholesale composition reform that merit being enacted.

However, I do not think it greatly enhances trust to bring forward at this stage a proposal to have a referendum on the alternative vote. I am in favour of having a referendum, but I do not think this is the right time or the right way to do it. The right time would have been in the early years of this Labour Government, when there was a firm proposal in the manifestos of my party and the Labour Party to have a referendum on an alternative system of voting, which was to be worked on by the committee chaired by the late Lord Jenkins. That report was for a variation on the alternative vote, which would have made it more proportional. A huge opportunity was lost when that recommendation was not put to the people at least 10 years ago.

We are bound to say that Governments in this country tend to reform the constitution in a piecemeal fashion, but the pace of reform has increased under this Government, and I want to pay tribute to them for that. However, we now require serious deliberation on how to express the principles that should underlie our modern democracy and how to deal with the out-of-date prerogative powers not by tinkering with resolutions on the war powers alone but by looking at whether it is satisfactory that the Executive's decisions should be dressed up in this 18th century constitutional garb which is simply unsuitable.

I appeal to the Government through the Minister to recognise that we will have to look at these issues-not just the issues in the Bill but the issues that we all recognise need to be addressed-in a more coherent, deliberative way and involve the public and all parties in the discussion in the full expectation that the principles that the Prime Minister backed when he published his Green Paper in July 2007 are translated into legislation that delivers what he proposed we need.

Photo of Lord Pannick Lord Pannick Crossbench 6:05 pm, 24th March 2010

In 1993, the noble Lord, Lord Adonis, wrote an excellent book, Making Aristocracy Work.It was about the proceedings of this House in the years 1884 to 1914. The book refers to a memorandum written in 1904 by the Earl of Selborne to Cabinet colleagues complaining that proceedings at the end of every Session of Parliament were damaging the reputation of this House. The Earl of Selborne wrote:

"The House of Commons send up in the closing hours of the session a batch of important Bills which the House of Lords has to dispose of post-haste. As a consequence, the proceedings are undignified and the work is badly done. It is not an abuse of language to apply the words 'farce' and 'scandal' to what takes place".

Since 1904, this House has become a professional, expert revising Chamber for draft legislation. We now aim to promote the highest standards of transparency, accountability and scrutiny, and we criticise ourselves, perhaps more than we are criticised by others, when we fail to meet those standards. Indeed, in opening this debate, the Minister emphasised the importance of transparency and accountability. It is therefore extraordinary-I use the word used by the Constitution Committee, of which I am a member-that in relation to this important constitutional Bill the Government should be contemplating the use of a wash-up procedure that is the very antithesis of the high standards of scrutiny, transparency and accountability that we must attain, and which we repeatedly tell ourselves we must attain, if we are to secure the confidence of the people of this country in our proceedings.

I do not impugn the good faith of the usual channels, but "the usual channels" is no more than a euphemism for a complete lack of transparency and accountability. The usual channels are no substitute for discussion and debate on the Floor of this House to examine the content and implications of clauses in a Bill and to consider possible improvements to them. That is true however important or attractive parts of a Bill appear to be.

In opening this debate, the Minister asked, perhaps unwisely, a rhetorical question-why now?-concerning one aspect of the Bill. The answer is surely self-evident: the Government now see constitutional reform as a vote winner, rightly or wrongly, and the need for proper, mature consideration of this Bill's provisions must for them take second place.

One could give many examples in the Bill of provisions that look attractive but need detailed consideration. For example, Part 12, on public records, is relatively uncontroversial, but one sees in Clause 86 that it is linked to Schedule 15, which would amend the Freedom of Information Act to create an exemption for communications by public bodies with the heir to the throne. This raises difficult and important issues. Is it really appropriate that the heir to the throne should be able to write to public bodies, with the purpose and the effect of influencing their decisions, and have such correspondence concealed from the public? If such an exemption is appropriate, it needs to be carefully considered and confined.

It is regrettable that there will be no opportunity to seek to add to the Bill much needed other constitutional reform. If the Bill had come to this House in good time and had had a Committee stage, I had intended-with the support, I know, of many noble and noble and learned Lords-to table an amendment raising the retirement age for all Supreme Court justices from 70 to 75, a reform that has the support of the President of the Supreme Court, the noble and learned Lord, Lord Phillips of Worth Matravers. It is absurd that Supreme Court justices, who inevitably take time to rise up to the highest levels of the judiciary, are required-as in the case of the noble and learned Lord, Lord Collins of Mapesbury, appointed only last year-to retire within two years of appointment. However, such matters will, I am afraid, have to wait for the next Parliament.

I hope that the Minister and the Government will have received and understood the message from all parts of the House in this debate agreeing in substance with the view of your Lordships' Constitution Committee that the Bill is simply not suitable for a wash-up procedure. The irony, of course, is that the Government's treatment of this constitutional reform Bill as a political weapon-because that is what it is-to be manipulated from time to time for partisan purposes, irrespective of basic constitutional proprieties, demonstrates with clarity the urgent need for fundamental reform of the machinery of government in this country.

Photo of Lord Grenfell Lord Grenfell Other 6:14 pm, 24th March 2010

My Lords, I declare an interest in that Clauses 59 and 60 of the Bill affect me personally. That is the first and only reference that I shall make to those two clauses in my intervention this evening and in any further stages of the Bill, if there are to be any.

This is not an easy speech for me to make, coming, as I do, from these Benches. I have not always been able to agree with my Front Bench and I am afraid that on this occasion I am not able to agree on quite a number of important issues. I came to the House of Lords 32 years ago. In fact, the noble Lord, Lord Henley, and I, if I remember correctly, took our seats on the same afternoon. In all that time I have never wavered in my belief that, as a Member of a revising Chamber, on some issues, particularly matters of constitutional reform, you have to say what you believe regardless of party affiliation and other considerations. That is what I propose to do.

The Bill contains some very sensible provisions, which, given its elephantine gestation period, is the least that one could expect of it, and I am sure that following proper scrutiny and debate I could support their translation into law. That said, I share entirely the view expressed in the wonderful, short, succinctly worded paragraph 47 that concludes the Constitution Committee's report. It says:

"This is no way to undertake the task of constitutional reform".

The members appear to have concluded unanimously that this House is being denied the opportunity to scrutinise properly the Bill's provisions. I have read carefully the Hansard report of the Committee stage in another place and conclude that there, too, far too little time was given for proper consideration of many of its provisions; indeed, some were not considered at all.

The Government can be justly proud of many of the constitutional reforms that they have put through over the past 13 years and I have been very happy to support in this Chamber their passage through Parliament. What a pity, then, that this quiet revolution, as my right honourable friend the Secretary of State for Justice has called it, should now be sullied, not by the nature of the provisions of the Bill but by the wholly inappropriate process by which Parliament, in particular this House, is asked to legislate them.

As the report of the noble Lord, Lord Goodlad, notes-it is worth repeating this-the Bill contained 56 clauses and nine schedules when it was first introduced. By the time it arrived here, it contained 95 clauses and 15 schedules, many of the new provisions being added very late in the legislative process. My right honourable friend the Leader of the House in another place informed the House:

"If the Bill cannot find its way through the Lords, we will make sure at the wash-up that the provisions that the public want get through".-[Hansard, Commons, 4/3/10; col. 1019.]

We must assume that, in accordance with convention, what do get through will be the provisions that are not contested-that is the tradition-but one is still entitled to ask: what is it that we are told the public want? We shall learn that, I suppose, when the usual channels emerge from their closed-door negotiations and tell us what will and will not become law. It is an odd procedure, but one which is found necessary and has in the past proved generally useful. However, I echo the spirit of the question put by the noble Baroness, Lady Boothroyd, which was so eloquently followed up by the noble Lord, Lord Pannick: this is not, in my opinion, a procedure to be applied to constitutional reform.

I am not these days a betting man-I gave up serious betting at about the age of 11-but I would be ready to wager a fiver today that, to take but one example, Part 2 of the Bill, which deals with the ratification of treaties, is not high on the list of provisions that the public want to see got through before the general election. I take this as one example of the several that could be chosen of what we are likely to lose and have no chance of fully scrutinising anyway. This is highly regrettable because the provisions on treaty ratification in the Bill are an overdue step-albeit far too timid-towards better parliamentary control.

European Union treaties have their own mechanism for parliamentary scrutiny but, under the Ponsonby rule introduced in 1924 and as currently practised, all other treaties subject to ratification are laid before Parliament, when signed, for a period of 21 sitting days before ratification and publication in the treaty series. Since 1997, each treaty is accompanied by a government Explanatory Memorandum providing information about the treaty's contents, the Government's view of its benefits and burdens and the rationale for ratification. Few treaties are debated under the Ponsonby rule, although the Government have agreed to make time for debate in certain circumstances. Even if there is a debate and Parliament expresses its disapproval, this does not necessarily prevent the Government from ratifying the treaty. None the less, the Ponsonby rule has resulted in most important treaties having some degree of parliamentary scrutiny. Select Committees in another place have, over the past decade, become more involved in treaty scrutiny-thank heavens for that-but the extent of the scrutiny depends on the committee's other priorities and the demands on its time. Let us not forget that globalisation is one of the causes of the growth in both the volume and scope of treaty making.

Current practices rely largely on the sanction of political criticism, which all too often falls on deaf ears and which has no legal effect anyway on the Government's decision to ratify, so for some time there have been calls for parliamentary scrutiny to be enhanced. Specific proposals have been put forward in five Private Members' Bills in this House, starting in 1996 with the first of three Bills from the noble Lord, Lord Lester of Herne Hill. I see him in his place and I seize this occasion to applaud his tireless efforts in this matter. In his first Bill, he proposed, among other measures, the creation of a joint parliamentary treaties committee to keep Parliament informed about the implications of treaties and to consult the public about them. The report of the Royal Commission on House of Lords Reform, under the very able chairmanship of the noble Lord, Lord Wakeham, saw the potential merits of having a Select Committee of this House to draw our attention to any significant implications of a treaty before the end of the 21-day Ponsonby period. Similar proposals have been aired by your Lordships since then, but we have got nowhere, usually running up against the brick wall known as the Liaison Committee.

Now we have the matter before us again in Part 2 of this Bill, which, in effect, puts the Ponsonby rule on a statutory footing. I am not quite sure why that is necessary, as Governments have been complying with it for the past 86 years. Also, I sometimes have doubts about parliamentary procedures being enshrined in statute. Anyway, Clause 24, based on the Ponsonby rule, provides that a treaty is, as in the past, laid before Parliament for 21 sitting days, during which both Houses have the opportunity to resolve that it should not be ratified. If the 21 sitting days expire with no such resolution being passed by either House, the Government can proceed to ratify the treaty. If the other place resolves that a treaty should not be ratified, the Government cannot at that stage proceed to do so; they must instead lay a statement explaining why they still believe that the treaty should be ratified and then wait a further 21 days. If by the end of that period the other place has not withdrawn its opposition to ratification, another 21-day period ensues, with the Government re-laying their statement-and so on, I assume, until the cows come home. However, if this House, with all the expertise at its command, resolves during the initial 21-day period that a treaty should not be ratified, the Government simply lay a statement of disagreement and tell the Lords to get lost. Well thanks a lot.

Yet the European Union (Amendment) Act 2008-about which I know something-which ratified the Lisbon treaty, provides that before a Minister may consent in the European Council to the use of a passerelle under the treaty, both Houses must pass a Motion to approve the Government's intention. That concession was made by the Government in response to our insistence. It was an enlightened decision, but that spirit certainly does not imbue Clause 24 of the Bill. I do not wish to sound frivolous, but if the Government are sincerely looking forward to the day when this venerable House is wound up and replaced with a 300-member senate, they should realise that that body will not accept this sort of treatment. Therefore, why do the Government not get used to the idea now and do for Clause 24 what they did for the European Union (Amendment) Act?

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

I had not intended to speak but, as the noble Lord was kind enough to refer to me, I wonder whether he would agree with me about the oddity of treating this House as inferior when it comes to treaty scrutiny. It is very strange to do that when this House, with its distinguished former Foreign Office and legal experts, has greater expertise in the area of treaty scrutiny than perhaps the other place. Does he agree with me that this is very strange, as well as on the inequality that he has referred to under the treaty of Lisbon?

Photo of Lord Grenfell Lord Grenfell Other

My Lords, I agree 100 per cent with the noble Lord: it is because we have this expertise here that we have that special capacity to scrutinise treaties. I know that that has been the theme of his argument all the way through since his first Bill in 1996 and I am glad that he has raised this again.

I also plead that serious consideration be given once more to the creation of a Joint Committee of both Houses to scrutinise treaties. This is a matter for the two Houses, but we need an assurance from the Government that they would do nothing to discourage, let alone try to impede, such an initiative.

I have devoted almost all my intervention to one part of this portmanteau Bill, but I have done that to illustrate the dilemma that this House faces when confronted with reforms of constitutional importance that we are expected to simply nod through without proper examination and debate. It is a distressing situation and I deeply regret it.

Finally, among the many lost opportunities in the Bill, the absence of a provision to set up a statutory Appointments Commission, as noted in the amendment moved by the noble Lord, Lord Steel of Aikwood, is particularly unfortunate. I trust that my noble friend the Minister will give us a convincing explanation for the Government's reluctance to make provision for something that surely the whole House, and indeed the public, would warmly welcome.

Photo of Viscount Astor Viscount Astor Conservative 6:26 pm, 24th March 2010

My Lords, to bring this major, 133-page Constitutional Reform and Governance Bill before this House at what can be described only as the fag end of a Parliament is a disgrace. I suppose one should not be too surprised as this Government have made more ad hoc changes to the constitution than any previous one in recent history. But interestingly, perhaps the most important pledge that the Prime Minister made in his first speech in that role in another place-his commitment to limit the power of the Executive to declare war-is not included in the Bill.

In another place the Bill was subject to six procedure Motions curtailing debate and the Government added new provisions during the last two days of Committee. The Bill should have serious consideration in both Houses. Any idea that it can be agreed in the wash-up is ridiculous and, perhaps more importantly, unconstitutional. If we wish to attempt to restore the trust the electorate should have in Parliament, Parliament must be seem to behave in an open and honest way, not least in relation to a Bill which seeks to make fundamental changes to the way this country is governed.

When one looks at the provisions of the Bill in detail, the first few clauses relate to the Civil Service. The principle to put the Civil Service on a statutory footing is to be supported, but even a brief reading of the Hansard report of the Committee stage in another place shows that there are many issues that need clarification. The Government are not really clear on the definition of a civil servant-or at least the Minister in another place was not clear. Quangos are excluded-one can see the logic of that-but government-owned public corporations are also excluded. Why? More staff are now employed in public corporations than civil servants. The rights and responsibilities of civil servants should be set out clearly for the benefit of the people whose executive they administer. But the employees of public corporations are also public servants, and they should also be clear of their duties.

The proposed Civil Service Commission, whose commissioners, according to the Minister, are not civil servants, although they are appointed by the Crown, will have only to lay a report before Parliament. That does not seem to represent full, proper accountability, especially in the circumstances where the commission potentially has the ability to intervene in the way Ministers, and indeed Permanent Secretaries, run their organisations. What is more, looking at the numerous clauses in the Bill on Civil Service employment, one must wonder why these are not covered by ordinary employment law. The Bill includes clauses that stipulate that appointments to the Civil Service must be made,

"on merit on a basis of fair and open competition".

Why? Are we to understand that is not the case now? It seems to me that it has been the case since the Northcote-Trevelyan report of 1854, so why does it need to be enshrined in legislation now?

The details of ratification of treaties also need scrutiny. It is a fundamental change in the way in which the country is able to enter into international agreements. Despite its importance, it has not been made clear during the passage of the Bill how it will affect the United Kingdom's ability to conduct foreign relations.

Next on the list is the removal of the by-election system for hereditary Peers. It is of course a ridiculous system; it was a compromise; it was never supposed to last; it was set up and agreed as an interim measure. However, that it has survived so long is the fault not of the opposition parties but of the Government, who have not come forward with any proposals. I agree that this House has become too large. It is second in size only to the Chinese national party congress. We are the only bicameral country with a second Chamber that is larger than the first. We need reform, but not like this.

Then we have the clause that one can describe only as the "Lord Mandelson clause", allowing Peers to return to the Commons. I did not realise that the noble Lord, Lord Mandelson, was still vying for the leadership of the party and is so missed by his colleagues in the Commons. What a tribute to his skills as Lord President. All I can say is that it is good try, but it will not succeed. If one accepts a life peerage, until reform, it is for life-no going back, pay full UK tax and stay here until reform or retirement. This House should not become an interim, mid-career resting place for passing politicians.

Then we have the proposed referendum on voting, which is an attempt by the Government to bind the next Parliament and to commit the next Government to a constitutional reform of the highest significance. I am surprised that the issue has not been brought out more by your Lordships today. If there is to be a fundamental change, it should be in a party manifesto that comes before the electorate at the election, not just tagged on at the last minute to this Bill. The alternative vote system proposed by the Government will mean that, instead of the most popular candidate being elected, the least unpopular sneaks in. However, that may just be a personal view.

One part of the Bill-I think that it is the only part-to which I can give some support is the right to demonstrate in the vicinity of Parliament. I understand concerns about noise and access to Parliament, but the right to demonstrate is central to our democracy and we need to support it.

This Bill will never have a proper Committee stage in your Lordships' House- there is no time. I have to say that I wonder why we should give it a Second Reading tonight.

Photo of Lord Tunnicliffe Lord Tunnicliffe Government Whip, Government Whip

My Lords, for the guidance of the House, the average length of Back-Bench speeches has been ten and a half minutes. If that continues, we will get to the speech of the noble Lord, Lord Tyler, at 10.30 pm. If we to revert to an average of eight minutes, we will get to the winding-up speeches, started by the noble Lord, Lord Tyler, at 9.30 pm.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat 6:33 pm, 24th March 2010

My Lords, I shall do my best to stick to the eight-minute limit. I shall talk about a couple of matters that should be in Part 5 of the Bill but are not.

First, I believe strongly that all future Members of your Lordships' House, whether appointed or elected, should be here for a limited term of office. It is a matter of real importance. Peerages are no longer awarded as honours; it is a long time since anyone saw an honours list which included them. Peerages, whether they are party appointments or Cross-Benchers, are awarded, or are supposed to be awarded, to people who can and will make genuine contributions to the work of your Lordships' House. Members appointed as Cross-Benchers are usually appointed because of expertise. They have expertise as medics, or in running charities, or as senior officers of the Armed Forces, or as trade unionists, or diplomats, or in a number of other fields-including, perhaps, lawyers. They contribute greatly to the work of your Lordships' House. Although I believe that party Members should be elected, I hope-contrary, I have to say, to my party's policy-that we can retain a suitable proportion of Cross-Benchers as appointed Members. The speech of the noble Lord, Lord Pannick, a few minutes ago was a good example of the benefits of having Cross-Benchers present here.

However, expertise has a use-by date. I should like there to be long terms of service in your Lordships-perhaps a suitable term would be 15 years. After 15 years, surely it is time for Members to give way to other people whose expertise is likely to be more recent. This is not a matter of ageism. Term limits would also make it easier to appoint young people as Members of your Lordships' House. We need more young people; we are desperately short of them in your Lordships' House and have been so for a long time. However, it must surely be unsatisfactory to appoint a young man or woman aged 35 who would be entitled still to be a Member of your Lordships' House 50 years later. Term limits would also help to reduce the excessive number of Members of your Lordships' House at any one time. Term-limited Members should be allowed to continue use of the title that they are given, either as a Peer or a senator, after the end of term. I would not apply term limits to those who are already Members of your Lordships' House, partly because life membership may have been an important factor in their accepting a peerage and partly because I would want a Bill providing for term limits to have at least some chance of success in your Lordships' House.

Term limits should apply also to political nominees, whether they are there by appointment or, as I hope, by election. For as long as political Members continue to be appointed, the reasons for having a term appointment seem much the same for political Members as for Cross-Benchers. It is desirable to have a reasonable rotation of Members. For myself, I think that by the time I have served for 15 years in your Lordships' House, which will be in about two and a half years, I will probably have contributed about as much as I can. Whether I will retire at that point, if I am still alive and compos mentis, is likely to depend on whether another Liberal Democrat may be appointed to succeed me.

Among those who want politicians to be elected rather than appointed there is a fairly general consensus that those who are elected should serve for a single, long and non-renewable term. This would give greater independence from party Whips, as Members would not have to worry about their reselection. I support the right under Clause 56 for Members to resign from your Lordships' House, but-and it is a big "but"-only on a condition which is not included in the Bill. That condition is that Members who resign are not entitled to stand for election to the House of Commons for at least five years after their resignation. This is intended to prevent your Lordships' House being used by ambitious young politicians as a stepping stone for the House of Commons, which would be disastrous for your Lordships' House. On this, I find myself for once in agreement with the noble Lord, Lord Henley.

I turn finally to another, quite different part of the Bill. Part 9 consists mostly of Schedule 10. I am interested in that part because it mainly amends parts of the Constitutional Reform Act 2005, an Act with which I was very closely involved. The amendments seem reasonable and not, so far as I can see, controversial. The main purposes of the amendments in Schedule 10 are, first, to remove the role of the Prime Minister, who under the 2005 Act has the role simply of a postman, passing on to Her Majesty recommendations from the Lord Chancellor for appointment to the Supreme Court or to the offices of President or Deputy President of the Supreme Court. The second purpose is to give greater confidentiality to medical reports on candidates for judicial office, so that the medical report goes straight to the Lord Chancellor and is not seen, as it now is, by members of the Judicial Appointments Commission. That, too, seems entirely reasonable.

The third purpose is to extend existing powers to disclose confidential information obtained in the course of the appointment process to cases where the disclosure is made for preventing crime or for purposes of criminal investigation. The Explanatory Notes do not explain why this is thought to be necessary; but if a satisfactory explanation can be provided, that too seems perfectly reasonable.

The fourth purpose is to give effect to a recent agreement between the Lord Chancellor, the Judicial Appointments Commission, the Lord Chief Justice and the Magistrates' Association that the Judicial Appointments Commission will not take responsibility for the selection of magistrates. This was a matter of concern at the time the Act was enacted, and I think it is now seen that it is not appropriate for the JAC to take over that responsibility.

Clause 66 contains some sensible and necessary provisions about salaries to members of tribunals. If the Bill gets to wash-up, I suggest that Part 9 should go through. I cannot say that it causes much excitement among the voters, but it seems to me to be straightforward, sensible, and does some good and no harm. I have done just past the eight minutes.

Photo of Lord Armstrong of Ilminster Lord Armstrong of Ilminster Crossbench 6:40 pm, 24th March 2010

My Lords, this Bill is an example of a trend which has become rather prevalent in the handling of legislative proposals. The Government put together a number of more or less disparate and unrelated subjects into a single, large and unwieldy Bill-a sort of portmanteau, as some people have described it. They give it a veneer of respectability with a cover-all title, burden it with an over-long Long Title, and drive it through in a manner which effectively denies Parliament the opportunity for the sort of effective scrutiny which Parliament ought to be able to provide for public legislation of this importance.

What we have today is a process of legislative indigestibility. What we are considering today ought to be not a single portmanteau Bill but a baker's dozen of separate and single-issue Bills. If we could revert to a regular process of single-issue Bills, it would act as a kind of control filter on the flood of legislation. We should have perhaps less legislation but more Bills, better prepared and better drafted legislation, and better scrutiny and improvement of Bills in Parliament. The balance between the executive and the legislative arms of the state would be improved. The effectiveness and the reputation of both Houses of Parliament would greatly benefit. I seriously commend these thoughts to those who are looking for better governance and for useful measures of desirable parliamentary reform.

The Bill which we are considering today has received a drubbing from the Select Committee on the Constitution. We are told that:

"It is inexcusable that the Government should have taken so long to prepare this Bill that it has effectively denied both Houses of Parliament-and especially this House-the opportunity of subjecting this important measure of constitutional reform to the full scrutiny which it deserves", and:

"We consider it to be extraordinary that it could be contemplated that matters of such fundamental ... importance as, for example, placing the civil service on a statutory footing should be agreed in the 'wash-up' and be denied the full parliamentary deliberation which they deserve".

A number of noble Lords have made the same point this evening. I say "Hear, hear" to that, with the special sense of deprivation felt as one of the independent Cross-Bench Peers who have no possibility of exerting even indirect influence on what goes on in the washroom.

It is on the Civil Service clauses that I should like to concentrate this afternoon. As it happens, the proposals for putting the Civil Service on a statutory footing have had more prior consideration and scrutiny than most of the rest of the Bill. We have, after all, had time to think about this subject since the idea of legislation was first mooted by Northcote and Trevelyan 150 years ago. As Talleyrand might have said:

"Surtout, pas trop de zèle".

We got through that 150 years because the principles and conventions which we are now proposing to legislate have been agreed and accepted as principles and conventions by all parties in Parliament and in the country. We have not needed to have them legislated because they have been generally accepted. I accept that the time has come, sadly, when we cannot rely on that degree of acceptance, and the time has come for legislation on the lines proposed.

In recent years, we have had several attempts to bring forward legislation on this. The Public Administration Committee produced a Bill in another place; and the noble Lord, Lord Lester of Herne Hill, has produced one in this House. Now at last the Government have brought forward their own legislative proposals, but not as a self-standing Bill, as should have been done, but as one element in this portmanteau-I nearly said ragbag-of a Constitutional Reform and Governance Bill.

The Government's proposals reflect a great deal of previous thinking and discussion on this subject. In general, I and, I believe, my noble friends and successors in the office of head of the home Civil Service welcome them. We think that they are not quite as good as they could be. A number of amendments put forward in another place, including some by members of the Public Administration Select Committee, were not selected and deserved to be considered.

If the Bill were going into Committee in this House, as it should be, there would be several amendments which my noble friends and I would wish to invite your Lordships to consider. We think, for example, that the role of special advisers should be more strictly defined and circumscribed. We consider that the power to appoint heads of mission in the Diplomatic Service otherwise than on merit should be clearly and strictly limited. We would like to see the Civil Service Commission given the right to initiate investigations of breaches of the civil service code, subject to consultation with the head of the Civil Service.

We think that the requirements on the duties and responsibilities of civil servants in relation to Ministers need to be balanced by requirements on the duties and responsibilities of Ministers in relation to civil servants. We accept, however, that that may be more appropriately dealt with in the ministerial code than in this Bill, though perhaps the principles of the ministerial code itself should in due course be put on a statutory footing.

Nevertheless, my successors and I are realistic. We know that legislation to put the Civil Service on a statutory footing will always be at the back of the queue for inclusion in the legislative programme. We recognise that, if we do not seize this opportunity for legislation, another opportunity might not occur for another 150 years.

We accept, however, that this part of the Constitutional Reform and Governance Bill should go ahead. If the Bill is to survive the strictures of the Constitution Committee, we would be content for the Civil Service part to come through the wash-up with whatever amendments may be accepted in that process, even if it has not been improved by the detailed scrutiny in Committee and on Report that it merits, so that it reaches the statute book before the dissolution of this Parliament.

If this part of the Bill does not proceed in this Parliament and it comes forward in the next, then we shall hope to have opportunities in the new Parliament to make good provisions even better.

There is one other point that I would like to make, arising out of the points made on the likelihood that the size of this House may increase after the coming general election and the difficulties that that would create. I am old enough to remember coming here as a young civil servant, sitting in the Box over there to brief Ministers, at a time when there were something like 900 Members of this House. Of course, they did not all turn up regularly; they turned up when there was something to be debated on which they had expertise to offer. Of course, if and when the House of Lords is reformed fundamentally, that will change things; in the mean time, we should not be stampeded by the possibility of a further increase in the membership of the House of Lords. The natural good sense of people will ensure that noble Lords come when they have something to contribute and do not feel obliged to come all the time. After all, if they do not come to the House, they do not cost the taxpayer anything.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour 6:50 pm, 24th March 2010

My Lords, unfortunately for myself, I have forfeited the right to speak in this debate due to the fact that I had to miss the speeches of the noble Lords, Lord Henley and Lord McNally, and a part of the speech of my noble friend Lord Bach, because I am moving amendments on the Flood and Water Management Bill in the Moses Room.

Without taking up my allocation of time, I should like to address two issues in the Bill, which I believe should go into wash-up and should go through-IPSA, which has nothing whatever to do with this House, and the referendum carried in the Commons by 365 votes to 187. It would be quite wrong for opponents of AV, on an unelected House matter, to use wash-up to block the will of the Commons, whether that be the Opposition or the Government.

Photo of Lord Rennard Lord Rennard Liberal Democrat 6:52 pm, 24th March 2010

I did not expect to reach my contribution quite so soon.

Part 3 of the Bill is different from any other part of the Bill because it does not decide anything but lets the people decide something rather important. There are arguments for and against electoral reform and for and against referendums, but I have never understood how there can be a democratic case against a referendum on electoral reform. It must surely be more democratic to allow voters to decide how their representatives are chosen than simply to argue for a status quo that allows MPs to decide for themselves the means by which they are elected. It is generally accepted now that MPs should not decide how much they are paid, so how could it be right for them to decide how they get their jobs? We know that many MPs like the present system because at least two-thirds of them are in safe seats. They are effectively chosen or reappointed by their parties. People cannot vote against them without voting out their own party. So I, too, welcome the provisions in the Bill to hold a referendum on electoral reform, although I wish it was for a more fundamental reform, a properly proportional system and, preferably, a single transferable vote.

There is opposition to the principle of any referendum on the issue of electoral reform from the Conservatives, but I cannot understand how those who have argued for a referendum on European treaties could convincingly argue that voters should have had their say on the fine print of such treaties but not on the principle of how their elected representatives are chosen. The Conservatives say that this should be the year for change, but when it comes to the most fundamental issue of reforming our political system, they are the party of no change and no say for the voters. It would also be right in this debate to ask about the Government's own sincerity in going some small way at this stage towards only partially fulfilling their promise on this issue that was the basis on which they were elected 13 years ago. They are, of course, finally reneging on the manifesto promise that they made in 1997 that people would be offered a choice between first past the post and a proportional system to be recommended by a soon-to-be-established commission on voting systems. Any promises or hints that they may make over the next few weeks on constitutional reform may therefore be received with some scepticism, but some of it would be reduced if the proposal for a referendum on an alternative voting system was reached and on the statute book before dissolution. If, however, they fail to achieve that, it will be a clear signal that 13 years and three Parliaments with three large majorities have been wasted on this issue and they have failed to deliver.

This is not the occasion for a full debate on electoral systems-and I know some noble Lords will welcome that statement. However, I shall deal just briefly with a couple of myths. The noble Lord, Lord Henley, argued that the AV system would result in there being more Labour MPs and Liberal Democrat MPs and fewer Conservative MPs, a point made repeatedly in another place from the Conservative Benches. That would only be the case if the voting shares in future were along the same lines as those in the previous three general elections. I doubt that the Conservative Party accepts that that will be the case, so they should stop making that bogus argument.

The noble Viscount, Lord Astor, attacked the basis of the alternative vote system, but it is exactly that same system that is used by his own party in all its internal elections, including that for electing its leader. It cannot be such a bad system if the Conservatives use it for themselves. What an alternative vote would mean is that most MPs would require the support of most voters; that is a principle that is hard to argue with. Those of us who are unelected should not ask to oppose the rights of the voters to have a say on how their votes are cast and counted, whether in the wash-up or not.

On the timing of election counts, the general discussion has revolved around concerns about losing the excitement of the so-called Portillo moments being broadcast at three o'clock in the morning, as against the need for accuracy in the counting process. The staff employed by returning officers may well be tired if they have been working at polling stations all day long and are then employed to count votes in the small hours of the following morning, but the volunteers from the parties, who may well have started the day much earlier delivering leaflets, working hard on polling day and in their evenings and weekends for many weeks and months through the course of the campaign, all want to be able to see the result that night, not to hear about it when they are back at work doing their jobs the next day. A far better solution to these conflicting priorities would be to allow voting at weekends, as in many other countries, with an early Sunday evening count that may not rival "The X Factor" but would probably engage rather more people in the whole process. But in the absence of that change to voting at weekends, I think that there should not be a problem in achieving accuracy and conducting the count shortly after polling stations close, in all but those areas in the Scottish Highlands and Islands where ballot boxes must be collected from remote locations. I shall never forget acting as agent in a parliamentary by-election when we lost by just 100 votes. I insisted on three full recounts and getting exactly the same result twice before finally accepting the result at 6.30 am, at which time it was broadcast live on the TV breakfast news.

Nor will I forget the call from the Winchester count in the 1997 general election, telling me that counting had been suspended, given the doubt and uncertainty over the result. The returning officer there very sensibly suspended the count and we started it at 1 pm, concluding at 6 pm that evening with the declaration that my party had won by two votes. It is for such moments that many of us live, and we hope that election officials and the Electoral Commission will understand that and respect Clause 90 requiring counts generally to begin within four hours of the polls closing.

My Lords, that is exactly eight minutes.

Photo of Baroness Boothroyd Baroness Boothroyd Crossbench 7:00 pm, 24th March 2010

My Lords, we have been in debate on this issue for some hours and it would be very nice if I could give the very popular Minister a little light relief, but I am afraid that I cannot manage it. I have to tell him, and it is with regret, that I cannot remember a more flagrant example of the mismanagement of an important constitutional Bill during my time in public life. The Government's decision to delay the Bill's arrival in this House until the eve of a general election is worse than a mishap. To me, it simply illustrates the Government's underlying contempt for this House, by not allowing us detailed scrutiny, and its disregard therefore of our duty to the nation.

It has been well minuted that after a series of Green and White Papers, the Bill was published as long ago as July of last year. If the Government had put their mind to it, it could have been on the statute book later that year, and in better shape than it is now. Instead I am afraid they dithered and, whatever Motion is on the Order Paper today, we all know-let us be honest about it-that we were given little time, if any time at all, to examine the 95 clauses and 15 schedules with the thoroughness essential for the proper scrutiny of legislation. Of course, I speak only for myself when I say that I think it is a scandalous way of dealing with this matter. I believe that the Government should think again.

We were promised a shiny new vehicle of reform. Instead, we are handed an overladen charabanc of changes that we are asked to approve without first being allowed even to look under the bonnet. The Government's negligence reminds me of a bus service that keeps its customers waiting for ages. When the bus finally arrives, it is already full up and there is no time to stop. We call out to the driver, "Hey there!", but he passes us by, just as the Government intend to do with this Bill. Ministers-even very popular Ministers-can hardly plead circumstances beyond their control, because the coming election has been on everybody's minds since Mr Brown became Prime Minister. Nor is this a minor measure, worthy only of a fag-end Parliament. Since taking its first steps a long time ago, it has grown like Topsy, as we have heard, with 39 more clauses and six more schedules.

The Justice Secretary described the Bill in a curious way at Second Reading last year. He said that its proposals,

"could be dismissed as prosaic", and that each step in the Government's programme of constitutional reform "appeared rather prosaic". I went to my dictionary-I thought that there might be a hidden, lawyer's meaning of "prosaic", but of course there was none. It means what we all know: dull, commonplace, unimaginative-hardly a recommendation and not a word I would use about changes to the legal status of the Civil Service, the ratification of treaties, the rights of the Royal Family and the composition of this House. I have been called many things in life but, thank goodness, never prosaic.

In his next breath, of course, the Justice Secretary changed his tune a bit and said that the Bill was part of,

"a major shift in power away from Whitehall to Parliament and the British people".-[Hansard, 20/10/09; col. 799.]

That is undoubtedly true for the Assemblies of the devolved regions, but not for the Parliament of the United Kingdom. Too much legislation is still ill considered; it is rushed and flawed, as the devastating report on the Bill from the Lords Select Committee on the Constitution makes clear.

Mr Straw speaks frequently about the need to make this House more legitimate, as if we were neither one thing nor the other. He really should reflect on his comments. We are here because the constitution of this country puts us here. Constitutional legitimacy is the lifeblood of this nation and I resent it being quibbled about by Mr Straw.

I do not object to the phasing out of the remaining hereditary Peers and I welcome our right to expel or suspend Peers whose conduct warrants it, but Mr Straw baulked at the need to entrench the powers of a statutory Appointments Commission to vet new life peerages, so there is no shift here in the Government's determination to hold on to power. Nor, I fear, will there be if we are replaced by a Chamber that lacks our independence. I understand that Mr Straw looks forward to finishing us off early after the election. If he gets the chance, he will have to manage the timetable better than he has managed the Bill.

Convention requires us to give this proposed legislation an unopposed Second Reading and so we shall. However, I urge the party leaderships and those who deal with the wash-up to take our reservations fully into account when they meet in the smokeless rooms for the wash-up session. The Bill has many good things in it, which I approve of, but it would be better still if much of it could be properly examined, in detail and in a new Parliament.

Photo of Lord Graham of Edmonton Lord Graham of Edmonton Labour 7:07 pm, 24th March 2010

My Lords, it is my pleasure to follow the noble Baroness, Lady Boothroyd. We first shared a platform in 1951, when I was chairman and she came along bringing a delegated representation. Ever since, our paths have crossed and it is a joy and a pleasure to see her here and in such good spirits, although I did not agree with her censures-but she would expect that.

I was moved to put my name down to speak in this debate because, in general, I sense as a former Chief Whip in this place that the Government will have a difficult job. The Minister, in introducing the Bill to us today, pointed out that he felt that some bits would be supported by all parties but that some would not be. I rest content that the outcome of the wash-up will be that all the parties will be satisfied with what comes out, because nothing will get through unless it has the agreement of all the parties.

We have had paraded before us aspects of the Bill that do not find favour with Members here. I do not quibble with them at all, but, as the Minister said, Parliament is in the middle of a crisis of confidence, in both system and persons. I use as a peg for what I want to say the fact that the spotlight of publicity has been shone on the noble Lord, Lord Ashcroft. We know that, in abusing the systems, he has sought to introduce a fantastic amount of money into constituencies that he has chosen as being possible to win. He hopes that, by buying the votes and the seats, he will be able to help to form a Government who are different from mine. He may be right; we will have to wait and see. I say simply that the practices that he is carefully nurturing-they do not seem to be condemned as much on the other side of the House as on this side-are not the only ones.

League tables have become part of the lexicon of politics. The league table that I am most proud of is football's Championship League, because at the top is the team of my home town, Newcastle United. The team won again last night and I believe that it will be promoted. That is not the only league table that is of interest, though. The Electoral Commission publishes a quarterly league table of constituency parties, showing the amount of cash and kind received. For the three months ending 31 December 2009, the league table records that the sums received by constituency parties were, from the bottom up, £35,000, £36,000, £50,000, £52,000, £55,000, £58,000, £70,000, £75,000 and £82,000, with, at the top of the table, the Edmonton Conservative constituency party receiving from its prospective parliamentary candidate alone the sum of £142,000. That candidate's name is Mr Charalambos. From what I know, he is a successful, locally based man who obviously has a lot of money, which he is entitled to spend as he wants. The present system allows him to spend it in that way, though, and that is wrong. This ought to be stopped and we ought to deal with it.

I hope that the Minister will be able to talk about the activities of Mr Ashcroft, which are turning back the clock. I thought, from my history, that rotten boroughs had been done away with years ago, but they have not if a man or woman can come into any town or city and, in effect, buy the wherewithal-a practice, as we know, that is rife in American politics-to hire people to do the canvassing and so on. There is a growing tendency to do this; we hear about Mr Ashcroft but there are others.

When I spoke to a colleague at a meeting today and told her what I was going to say, she said, "Well, in a constituency where I worked, an attempt was made to do that. Over £300,000 was calculated to have gone into the coffers of one candidate, but they did not succeed". Money will not always be the answer.

I do not say that the present or the past are right and that things cannot be changed. We are in the middle of change in lots of things and, in the Bill, there will be attempts to change even more. However, we need to be alerted to the fact that if the Government, of whatever colour, do not deal with the kind of thing that I am talking about, our democracy will be diminished. I hope that the Minister is able to say something kind about this idea.

We all know, as experienced politicians, what is going to happen to the Bill. I could enter into arguments about the Government's programme and their priorities and the fact that the election is going to be held and Parliament will end at Easter, whereas normally it goes right through to November. There are all sorts of reasons and miscalculations. I shall simply say, however, that we need to be aware of the fact that the practice of buying constituencies, which in effect means buying Governments, is here to stay and is successful. I am ashamed that it is happening in Edmonton.

Photo of The Earl of Onslow The Earl of Onslow Conservative 7:14 pm, 24th March 2010

My Lords, I must congratulate the noble Lord, Lord Graham, on making a speech on a subject that is not in any way in the Bill.

I was extremely moved by the noble Baroness, Lady Boothroyd. Possibly this is because I feel sometimes that I have a kinship with Speakers since, at the bottom of the Speaker's stairs, there is my coat of arms because of the Onslow Speaker, and there was an even greater Onslow Speaker. When I see someone such as the noble Baroness, who filled that post with such distinction, I feel an almost-if she will forgive me-proprietorial pride in her achievement. When I heard what she had to say today, I could feel all the Onslow Speakers, of which there are three, rising up and clapping her, even though that is probably not in parliamentary order.

I am not going to say much, but I shall say again and again what has already been said about the disgracefulness of the way in which the Bill has been brought before your Lordships' House. Constitutions are serious things. Some of them are quite small; the American constitution, including all its amendments, is about 45 or 50 clauses. The Bill, however, has 95, which simply tidy up and tinker at the edges-and still they have not been properly debated.

The Bill was given a Second Reading in another place in July 2009 and comes here today. It went through the other place in a way in which, two Parliaments ago, it would not have been allowed to: on carryover. Constitutional Bills should not be carried over. It went through on a timetable. Constitutional Bills should not be on a timetable. If the Liberal Government could get the Parliament Act 1911 through without a timetable, I am sure that this Government, had they thought their way through properly-and, as the noble Lord, Lord Armstrong, said, had they produced Bills that were on one subject only, not on practically a whole Encyclopaedia Britannica's worth of subjects that are poured into people's ears in indigestible form-could have done the same. I had reason the other day to read one of Peel's police Acts; it was so understandable that it read like a Mills & Boon novel. British Bills now are practically all indigestible. They are too long and suffer from long titles of Macauleyesque length.

I cannot emphasise enough the total impropriety of people from both Front Benches-the Liberals will happily join in, obviously-going behind closed doors and agreeing which bits of a constitutional Bill should go through or not. I say to my own Front Bench, "Will you please tell us what you will allow through and what you will not?". I sincerely hope that the only part that it allows through is the one regarding IPSA, because it would be wrong for us not to; here I agree with the noble Lord, Lord Campbell-Savours. All the others can wait. None of them is that urgent-after all, the Liberals promised to make this House more democratic in 1911 and they have not got much further.

Interestingly enough, one of the defences of the pre-1911 House of Lords was a quote from Cromwell, who said that if the House of Commons had total supremacy it would abuse it. What has happened? The House of Commons has total supremacy, more or less-although of course I am not advocating the repeal of the 1911 Act; that would be dotty even beyond my powers of imagination-and it is too dictatorial. What makes it worse is that, because of things such as timetabling, carryover and the party Whip system, the Executive have too much power. Our job in Parliament, in both Houses-the Commons has to sustain and provide money for the Government to go on-is to make life difficult for the Government. We should make them answer questions; we should make them come up with the right answer. Unless we do that, we are not doing our job properly. This is a perfect time for us to say, "No, we will not do anything; we will not allow it through".

It would have been much more honest not to have given the Bill its Second Reading. I understand about IPSA and about non-doms, but there is a great unfairness. This is only rumour, but it is right to raise it. I believe that the noble Lord, Lord Grenfell, will be rather unfairly treated by that provision. That, again, is a reason why things should be properly looked at and gone through word by word, not just agreed in smoke-filled rooms at the end of a Session. It is a disgraceful way to run a constitution. Lawyers such as the noble Lord, Lord Bach, and Mr Straw ought to know better. After all, they have studied the law, they know what the law is about and they should understand the spirit of the law. I am afraid to say that their behaviour, in both cases, has shown that they do not. They have treated the constitution and Parliament with contempt in producing this Bill in this state. I am sorry if I am getting worked up, because I feel so strongly about Parliament and about Parliament serving people. It should not be just frittered away through the Bill in this dreadful way.

Photo of Baroness Young of Hornsey Baroness Young of Hornsey Crossbench 7:20 pm, 24th March 2010

My Lords, many noble Lords have pointed out with great clarity, rigorous analysis and some vehemence the shortcomings of this Bill, in particular the speed and nature of the process with which noble Lords have to grapple. I want to say a few words about a few areas that I hope are not too contentious. In general, I welcome very much the proposal that the Civil Service Commission be placed on a statutory footing. The independence and impartiality of the Civil Service now, more than ever, needs to be demonstrably transparent.

Before going any further, I declare an interest as a paid non-executive director of the National Archives. I followed the progress of the review of the 30-year rule and the Government's response to it with interest. This will be the main focus of my speech. I wholeheartedly support the reduction of the 30-year rule, whereby departmental records are handed over to the National Archives after that period, to a 20-year rule. I give the Government credit for instituting a wide-ranging review of the rule. I also pay tribute to the work of all the members of the review team, chaired by Paul Dacre, and to the officials from the Ministry of Justice, the Cabinet Office and the National Archives.

Both the Freedom of Information Act and the Public Records Act attempt to strike a difficult balance. On one hand, we have the right of citizens to understand how and why decisions are taken by those whom they have elected and, on the other, we have the need for government to function effectively and maintain a degree of confidentiality. The decision to lower the transfer rule from 30 to 20 years means that how government collects, manages and uses its information is now increasingly aligned with the expectations of its citizens and the demands of our information society. I also commend the government decision to simultaneously lower to 20 years, with immediate effect, the time at which historical exemptions cease to apply to freedom of information requests.

Our citizens have a right to know precisely how well, or not, they are governed and have been governed. It is the right decision and I support it. Within the Bill, it is proposed that the Lord Chancellor be given an order-making power to ensure that the transition is properly implemented across Whitehall. It is vital that this does not become an opportunity for every department to plead its case for special treatment or for exemptions. A consistent approach across all departments will be vital if this process is not to unravel in its first year. I urge the Government to limit the scope of any order to only that which is absolutely necessary to ensure compliance with the new transfer rule.

It is estimated that there are around 2 million paper records agreed between 20 and 30 years old that must be dealt with. This is a huge task, which will require careful preparation and implementation. I welcome the proposal that the National Archives will oversee this transition and report back annually to Ministers on progress by departments. Work is already under way at the National Archives to ensure that it is ready to advise and support departments during the transitional period and beyond. It will be vital, however, that departments recognise the scale of the task facing them and that each prepares an implementation plan in consultation with the National Archives, setting out how the work will be carried out across the full 10 years. Does the Minister agree that this would not only be a sensible course of action but one that every Permanent Secretary should agree to, so that Ministers have a full appreciation of the risks and costs involved?

Photo of Lord Gordon of Strathblane Lord Gordon of Strathblane Labour 7:24 pm, 24th March 2010

My Lords, I hope to get the support of your Lordships' House by undershooting my time by at least a third. As the Minister said in opening the debate, this is a major Bill. As has been instanced in every speech so far, there is a great deal that most people would support in almost every clause, but I am afraid that I must side with the general view of the House that it is simply not right to bring a Bill such as this to Second Reading with only a few days left in the legislative programme. Government managers must recognise that, when they introduced quite so much legislation in the Queen's Speech, with only half a Session to debate it, they were tempting providence. Frankly, to do it with a constitutional measure of this significance is, as the noble Baroness, Lady Boothroyd, said, treating Parliament with contempt.

I am worried about wash-ups becoming stitch-ups. It is not that I do not trust the government Front Benches, although we all know what happened in the case of House of Lords reform, when Mr Straw managed to get the agreement of the Front Benches to a lot of what he was doing; it was only when, I am glad to say, the noble Baroness, Lady D'Souza, broke ranks and indicated that there was not a consensus that that collapsed. The fact is that Front Benches, with the best will in the world, do not have a monopoly on wisdom. I have only to think back to the Digital Economy Bill, in which I played a bit of a part. A lot of the best contributions to that debate came from the Back Benches. I think, particularly, of the noble Earl, Lord Erroll, and the noble Lord, Lord Lucas. A lot of the information that they brought forward led the Government to introduce amendments quite fundamentally changing parts of the Bill. The right way to deal with this is for the Government to say, "How much legislative time do we have and what can we reasonably get through?", relying on the good will of the House to perhaps put things through with a degree of urgency and then tailoring the Bill to that amount of time. The rest of it is too important to be rushed.

I will concentrate on one other item: the amendment moved by the noble Lord, Lord Steel, on the statutory Appointments Commission. He rehearsed the number of times that the Labour Party has pledged itself to this in election manifestos, so one simply asks: why is it not in the Bill? The answer, I am afraid, without being unduly cynical, is quite clear, certainly to me. It simply does not sit well with the Government, in the form of Mr Straw, producing in the next few days, we are assured, his recipe for an elected senate of 300 seats or so. It would look as though the Government did not really believe in it. So, once again, the possibility of incremental improvement in the workings of Parliament has been sacrificed for gestural politics that, frankly, will not come to reality in any foreseeable timescale, I am glad to say.

As some noble Lords may know, in all debates I have supported a wholly appointed House of Lords, which I regard as a legitimate second stage of reform, and for that reason I do not agree with the points made by various hereditary Peers that it would be a breach of the undertakings given by my noble and learned friend, Lord Irvine. That stance can be taken by people who support an appointed House. It is less easy for Mr Straw to justify it, because if he regards reform only as requiring an elected House-I have never equated reform with election-arguably his expulsion of the hereditaries, or allowing them to wither on the vine, should wait for that as well.

I have three observations on the possibility of this becoming an elected House, which affects the statutory Appointments Commission. First, I hope that the House authorities will ignore it. We should bear in mind the fact that planning for office accommodation for us is a long-term business. If they take their foot off the pedal and start saying that they need not worry about any more offices for Peers because there will be only 300 of them in a month or so, we will face a major problem.

Secondly, it should not be forgotten that when the House of Commons debated this in 2007, which was at the height of the cash for peerages scandal, there was none the less still a majority of Labour and Conservative MPs voting against the proposal for 80 per cent election. I confidently predict that, when Mr Straw publishes his draft clauses for election, that majority will increase when people realise the systems that may be proposed. Surely any electoral system that he proposes will be an improvement on the present and, if it is an improvement, an elected senate will be superior to the House of Commons because it will be elected on a superior system.

Finally, if the Government include this in their manifesto and win an election convincingly, they will claim an electoral mandate for it and use the Parliament Act to force it through in the next Parliament. I hope that they will recognise that the converse should also be true: if there is a swing against the Government, they should equally accept that mandate from the electorate and drop the proposal.

Photo of Lord Cobbold Lord Cobbold Crossbench 7:31 pm, 24th March 2010

My Lords, I will confine my remarks to Part 5 and begin by stating my strong support for the amendment of the noble Lord, Lord Steel. I reluctantly accept the proposed ending of by-elections for hereditary Peers. As one of the 92, I consider myself to have been extremely lucky to be able to retain a seat in your Lordships' House but, looked at dispassionately, it is very hard to justify heredity by itself as a qualification for membership of the upper House. However, there should be nothing to stop an hereditary Peer applying to the Appointments Commission based on personal merit.

The other issue I wish to raise is the size of the House. As has been said, the House is already the second largest upper House in the world; with life membership, and a population living longer, it can only grow larger unless there are to be no further admissions, which is clearly not an option. Clause 56 allows a Peer to resign from the House and while this is a reasonable step, there seems to be no incentive to resign or retire when, as at present, Members can simply not attend or seek leave of absence. It does not seem to me that it will solve the numbers problem. I believe that the only way to address that problem is to introduce a limit of parliamentary service of, say, 20 years. This could be achieved over a transitional period of, say, five years to avoid a mass exodus. We can, I hope, discuss these issues further at the Committee stage if, indeed, there is to be one.

Finally, it is most important that this House should remain fully appointed and not be replaced by an elected senate. In the next Parliament, we must stand together and resist this threat to the future of our House and the valuable service that it performs.

Photo of Lord Berkeley Lord Berkeley Labour 7:33 pm, 24th March 2010

My Lords, I shall speak about a slightly different subject from those raised so far by noble Lords in this very interesting debate. It is dealt with in a nicely hidden clause in Part 12-Clause 86-and Schedule 15. Paragraph 3 of the schedule would insert in Section 37(1) of the Freedom of Information Act 2000 further limitation on FoI requests about the Royal Family. It provides an absolute exemption from such requirements to the heir of the throne, a person who might be heir in the future, other members of the Royal Family and the Royal Household.

In his opening remarks, the Minister referred to this clause and said that its purpose is to protect the constitutional conventions surrounding the monarchy. My comment would be, "Yes, perhaps so". There is nothing wrong with that but some activities undertaken by the Royal Family in recent years have, I suggest, strayed some way from anything relating to a constitutional convention. It applies both to the number of Royal Family members receiving travel and security expenses or support and the activities that they pursue which often appear to be a long way from that.

My interest in this stems from the annual royal transport report. I am not commenting or criticising in any way the travel costs or arrangements of Her Majesty or Prince Philip. They do a great job and seek the most cost-effective means of travel where possible. That was well exemplified by a picture that appeared before Christmas in the Evening Standard of Her Majesty getting on to an ordinary train at Kings Cross going to Sandringham. I thought that if she can do that, perhaps some of her family should be able to as well, rather than going in helicopters all the time, as I shall explain.

There are, I believe, 12 members of the Royal Family who receive government-funded travel. Prince Charles once took a helicopter from Highgrove to Gloucester, which must be all of 12 miles. I think he has one or two cars, and could probably have gone by car. Prince William, as we all know, took a helicopter, which I think he flew himself, to the Isle of Wight to go to a party.

Sadly, the report's usefulness has been reduced because the Royal Household argued two or three years ago that it was too much effort to list individual journeys valued at £3,000 or less and that the lower limit should be increased to £10,000. So we do not know how many trips cost between £3,000 and £10,000. A helicopter trip seems to cost somewhere between £3,000 and £10,000, which is rather more than you would pay to go by car or train.

I notice from the latest report that some helicopter trips in this country taken by the Duke of York, the Princess Royal and others, are knocking on between £12,000 and £15,000 just to get from the London area to Scotland. An awful lot of them could have gone first-class on the train for that amount of money. The Earl of Wessex, too, spent £10,000 on one trip. It is reasonable for taxpayers to know the cost and the purpose of taxpayer-funded trips made in helicopters, for instance, when used by minor royals.

On security, we read in the press-I do not know whether it was because of a Freedom of Information request-that Princess Beatrice, who I do not think is first in line to the throne, had four security officers permanently with her on her gap year in the Far East and now has two with her while she is at university in this country. Again, I think that we should know.

Prince Charles has also been dabbling in a little bit of business by allowing one of his Duchy of Cornwall tenants to cultivate non-native Pacific oysters in the lower Fal estuary and the Helford river. He seems to have encouraged his tenant to get £230,000 of European Union aid, but they seem to have failed to apply for permission from the Marine and Fisheries Agency. I received a Written Answer on this, HL 2342, which showed that not only did they fail to seek permission but they failed to do an environmental impact assessment. I find that rather surprising. The consequence is rather sad-not only have all those oysters died, they have killed all the others in the estuary. However, that is beside the point. For somebody who has so much concern about the environment, it seems a slight omission not to do an environmental study on something so critical.

Security will always be used as an excuse to use helicopters and for other protection costs, but where does it end? Clearly, some members of the Royal Family need security protection, but do all 12 of them really need it, and at such a high level?

My main concern about this section of the Bill is that the Duchy of Cornwall is a business, as we all know. It should be considered a public sector business and therefore be subject to the Freedom of Information provision, because it has nothing at all to do with the constitution. Schedule 15 could prevent the release of information on all those issues and many more; so rather than having less transparency-I am afraid that the travel report produces less than it used to-there should be more.

The Royal Family should not be above the law when they dabble in oysters, or other businesses, or in the design of buildings, or in whatever we might want to exemplify. I believe that this clause has very little to do with the main purpose of the Bill. It has crept in there because it is a nice way of stopping people from doing too much work but, if and when we get to the wash-up, I hope that it will be removed and, if necessary, brought back and given proper scrutiny.

Photo of Lord Wright of Richmond Lord Wright of Richmond Crossbench 7:41 pm, 24th March 2010

My Lords, I have three brief points to make on this Bill. The fact that the first two are words of welcome does not in any way contradict my strong support for those who have said that this is no way to undertake the task of constitutional reform. I add one further point. As the noble Lord, Lord Armstrong, has pointed out, the process of the wash-up, which has been widely criticised this afternoon, excludes altogether any input from the Cross Benches-now the second largest group in this House.

Having said that, first, I welcome the proposal to put the Civil Service and the Diplomatic Service on a statutory footing. It may not go as far as some would want but it is nevertheless very welcome, if long overdue. Perhaps I may correct my friend and former colleague, the noble Lord, Lord McNally, who is not in his place; it is in fact 156 years late. Secondly, I welcome the attempt to clarify and limit the status and responsibilities of special advisers-if not their numbers, as the noble Lord, Lord Howarth of Newport, pointed out. I also welcome the emphasis on the political objectivity and impartiality of the public service.

Thirdly, does the reference in Clause 10(3)(a) to persons selected other than by promotion on merit reflect any intention on the part of the Government to increase the number of political appointments at ambassador or high commissioner level? I doubt whether during my 36 years in the Diplomatic Service, or subsequently, there have ever been more than two political appointees abroad at any one time. Although I pay tribute to several past appointees in this House-most recently, the noble Lord who is the chairman of the Constitution Committee-I hope we can be given an assurance that the Government have no intention of following the example of the United States, where frequent political appointments have sometimes been blatantly inappropriate, a system which, in my view, would have a most undesirable effect on the morale and efficiency of Her Majesty's Diplomatic Service.

To add a postscript, I support strongly the noble Baroness, Lady Young of Hornsey, on the need to identify the resource implications which departments like the Foreign and Commonwealth Office, and others, will face in implementing the reduction of the 30-year rule.

Photo of Lord Borrie Lord Borrie Labour 7:44 pm, 24th March 2010

My Lords, I very much agree with the points that have by now been made again and again from all sides of the House; that the process in the Bill for the considerable degree of change in the constitution, which has been embarked upon at the fag end of this Parliament, is quite wrong. Inadequate scrutiny is bad for any Bill but it is, surely, particularly bad for a Bill of constitutional significance. I felt that the noble Baroness, Lady Boothroyd, spoke for-I had better not say all-a great many of us on all sides of the House when she expressed herself in very clear, forthright and condemnatory terms about what is happening.

To quote the noble Lord, Lord Henley-the beginning of the debate is now some time ago, so perhaps he will forgive me if I have not quite got it right-some parts of the Bill may not be objectionable but they still need scrutiny. That is a good general point. I would apply it to the only part of the Bill I shall speak on, which is Part 5 on the House of Lords. Despite the words of the noble Lord, Lord Denham, who is not now in his place, and the right reverend Prelate the Bishop of Durham, there surely must be very wide agreement on the principle embodied in the Bill for ending the arrangements, in operation since 1999, for by-elections to fill vacancies for hereditary Peers when one of them dies. It was notable for me that the noble Lord, Lord Cobbold, himself an hereditary Peer, took the same view. There is no merit in continuing with these by-elections.

I can agree with the Lord Chancellor, Mr Jack Straw, who said at Second Reading in the other place that the arrangements were "utterly risible", particularly when there were sometimes more candidates in those by-elections than there are electors. I can also agree with the Conservative spokesman, Mr Dominic Grieve, who, speaking in a very measured way as he normally does, said that the present arrangement for elections of hereditary Peers was a "peculiar anomaly".

As the noble Lord, Lord Steel, and others have said, nobody anticipated 10 or 11 years ago that these arrangements would still continue. They can be got rid of only by legislation, so here is legislation. It cannot be done by mutual agreement or something of that sort. Of course, it may take a few decades for all current hereditary Peers literally to die off, but so what? The principle that being in this House is a result of heredity will have been banished. That will gradually take effect and-as I think that the noble Lord, Lord Pannick, said earlier-it is indeed a more civilised way if it is done by the Grim Reaper than by some other method.

There seemed to my mind to be a certain amount of general agreement that people who are guilty of serious criminal offences should not be Members of this House and that there should be expulsion as well as suspension powers for this House when Peers bring it into disrepute in some way; that is in Clauses 54 and 55. On the first part of that, I will express some doubt. I suppose there is a certain logic that a legislative body whose Members help to make laws should not itself include anyone who has committed a serious breach of the law. Yet the House could lose something by the very absolute nature of Clause 54, which is not discretionary.

I recall that, in the 1980s, the late Lord Spens was convicted of a serious offence and on completing his sentence was of course able to return to this House, where it so happened that there was an interesting debate about prisons. He took an impressive part in that debate. He spoke from rather more experience than most other Peers attending on that day, and his speech was obviously enhanced by that experience. I also note that if only as a result of pressure from the European Court of Human Rights, plus the pressure from the noble Lord, Lord Ramsbotham, it may be that the UK will be obliged in the near future to allow all convicted persons to exercise the right to vote for the other place.

If persons convicted of a serious offence, and even those still serving a prison sentence, can take part in the electoral process, it seems to me that the case for automatically depriving convicted Peers of a right to return to the House after they have served their sentence-a right enjoyed for hundreds of years-is reduced. Clause 55 is a discretionary clause to expel people who bring the House into disrepute, but surely that could be used because of the offence of which they have been convicted.

The only point of talking about such things in a Second Reading debate is to put down a marker for the Committee stage. I am afraid we all know that there will not be a Committee stage, and I fully understand the Cross Bench irritation, expressed by the noble Lord, Lord Armstrong of Ilminster, that the Cross Benches do not have a role.

Photo of Lord Henley Lord Henley Shadow Minister, Justice

Even under the wash-up process, I understand that there will still be a Committee stage, so it will be open to noble Lords to table amendments. Whether they are discussed will be a matter for the House, but the noble Lord is free to table amendments in due course.

Photo of Lord Borrie Lord Borrie Labour

I am grateful to be corrected by the noble Lord. If he is right it will be of tremendous interest to many people, not only those here now but others who have ideas for amendments. I say good luck to them and I thank the noble Lord for that comment.

Photo of Lord Williamson of Horton Lord Williamson of Horton Crossbench 7:52 pm, 24th March 2010

My Lords, when we receive a Bill containing a part specifically entitled, "The House of Lords", we might expect a slight shiver to run through the calm environment of your Lordships' House. Having sat here for many hours since the debate began I think that I will withdraw the word "shiver" and insert "a deep frost" in this case-at least in relation to the Government's presentation, handling, timing and treatment of the Bill at the final stage of its arrival in this House. The Minister will be glad to hear that I shall not go over that ground again. He can hardly fail to have noticed the comments not only from the Constitution Committee but from all around the House.

After the Bill's elephantine gestation I want to say a few words about its substance. I doubt whether they will affect the wash-up but we can dream. I want to comment, first, on the long-awaited Bill establishing for the first time a statutory basis for the management of the Civil Service. We know that this has been delayed for more than a century and a half-some Members have quoted different figures, but I have my own. I was a member of the Joint Committee that examined the draft Constitutional Renewal Bill, as it then was, which now appears with all the extra clauses on the pick and mix system that we have in this Bill, and with a new Title. I am happy to see that some provisions in the earlier draft Bill are not in this one. For example, the role of the Attorney-General was not ready for legislation and it does not appear in the Bill. It is always a cause for personal rejoicing when something is not being legislated on. On the other hand, I congratulate the Government on the proposed legislation for the Civil Service, which may survive the wash-up.

On the substance of the Bill, it is necessary to look at the different parts separately. Despite the ingenuity of Ministers and civil servants it is extremely difficult to see any common theme. Part 1 is a Civil Service Bill and I declare an interest as a former civil servant. I am glad that the Government have shown discretion in not overloading this part with detail on the role and duties of civil servants. The Bill's formula on this point is simple: the Minister for the Civil Service has to publish a code which will be laid before Parliament that requires civil servants to carry out their duties with integrity, honesty, objectivity and impartiality. That code will form part of the terms and conditions of any civil servant covered by the code. Similar provisions, of course, apply to the Diplomatic Service code that the Secretary of State must publish and lay before Parliament. I do not find that controversial. I make that point in case it comes up in the wash.

Perhaps more controversial is the treatment of special advisers. A code will be laid before Parliament which will again form part of the terms and conditions of service of special advisers. It is perhaps weird to read in Clause 7(5):

"But the code need not require special advisers ... to carry out their duties with objectivity or impartiality".

That is specifically stated in the law, which I can understand, but it sits rather oddly in the Bill.

There has to be an annual report from special advisers. So far, so good, but we have a number of questions that we will perhaps not have the time to deal with unless amendments are tabled for the extremely brief Committee stage that we expect. First, how are we to treat restrictions on special advisers' functions? That is an important point. Secondly, should there be a limit on the number of special advisers? Paragraph 296 of the Joint Committee's report suggests that it might be done by limiting the number of special advisers that each Cabinet Minister can appoint. That is a serious point which we may never get to, but I would like to record it.

I turn briefly to Part 2 on the requirement that a treaty should not be ratified unless it has been published and laid before Parliament for 21 sitting days, during which time either House can resolve that it should not be ratified. That reflects the Ponsonby rule dating from 1924, which is generally followed. The Bill provides for a further statement to Parliament explaining why the Government can none the less ratify a treaty when either House has resolved that it should not be ratified. There are special exceptional cases and other elements in this part of the Bill. Obviously this is not a lock on the Government's position, but it is an advantage to formalise a role for Parliament on treaties and in general I support it. It could perhaps be done better but I would like to see this in law. The definition of a treaty is very wide and this again could be open to question-for example, a large number of treaty-like operations, such as Memoranda of Understanding, exchanges of letters and so on. That is how government is carried on. For example, there is the agreement between the Prime Minister and the United States President in 2006. It was not strictly speaking a treaty at all; it was an exchange of letters that would probably not be covered by this text. There are serious points about how that would be handled, but overall there is a lot to be said for putting in statutory form some greater control over treaty-making and a greater power for Parliament on that matter.

Part 3 covers the referendum on the alternative vote system. As an unelected parliamentarian, I never object to asking the people for their opinion; it seems a very good idea. I have nothing to say about that, but I note that several colleagues are thinking of proposing amendments in relation to voting. For example, I believe my noble friend Lord Ramsbotham intends to table an amendment about prisoners' voting rights. I just mention that to the Minister; we may see it before too long.

I must move quickly through these various parts of the Bill. I shall certainly not cover all of it, but only a selection. I come to Part 5, which relates to the House of Lords. I am very pleased to see some of the provisions of the original Steel Bill. We were not allowed to have these before, but we are invited to have them now. That is a very good thing. I support the amendment that has been moved by the noble Lord, Lord Steel. I supported the original Steel Bill and it would be good to have a statutory Appointments Commission. Most people have spoken on the House of Lords and I do not wish to speak in more detail about its composition-a subject on which I have heard much said so often. I may now rest on that point.

The other provisions about discipline in the House and the position of those who have been sentenced to various forms of imprisonment or fallen into bankruptcy are perfectly reasonable and in the same spirit as those in the other place. I come to Part 7, on which I have a brief comment. My speech is very brief, really. Part 7 would remove Sections 132 to 138 of the Serious Organised Crime and Police Act and put in effect a much better system for demonstrations in the area around Parliament. It would also set a limit of 300 metres from Parliament, which could be determined as the area in which such demonstrations could still be controlled by a senior police officer. There was a much wider area before, which was a serious mistake. Overall, Part 7 is very much to be welcomed.

I conclude now, but I have noted that the next speaker on the list is the noble Lord, Lord Phillips of Sudbury. I welcome him back. He will be able to recall how calm this House was when he left and contrast it with how we now deal with legislation. That is what we have to put up with. As I said, there are points in the Bill which, in substance, are desirable. I would like to cheer the Minister up by saying that I support some of what is in the Bill and take a positive attitude to those matters. I will not deal further with the question of how the Bill arrived here, or with the process, the deep freeze and all the other things from which we have suffered this afternoon.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat 8:03 pm, 24th March 2010

My Lords, first, I thank the noble Lord, Lord Williamson of Horton, for those kind words. All I can say is that whatever other feelings are going through my breast, it is a genuine pleasure to come back to such a friendly, civilised place as this. It is a triumph of human creativity to have a place such as the House of Lords. When you are away from it, you appreciate rather more its extraordinary organic functioning; the grace and lack of partisanship; the friendship and warmth; and the willingness to listen to people and have, as far as possible, open minds. I have missed all of that. It is something of an irony that the last time I was on my feet in this Chamber, in the summer of 2006, it was to lay before the House a Private Member's Bill permitting the resignation of life Peers. It was partly the provocation of that provision in this Bill that ultimately forced my wavering hand.

Many have said, very eloquently, that this is not the way to treat a major constitutional Bill. There is nothing to add to that. The one point that I have not heard emphasised, and is worth emphasising, was made by the noble Lord, Lord Henley, at the beginning. He said that in the Commons a third of the Bill was not even debated.

If I have learnt even more than I already knew in the nearly four years that I have been away, it is from the quite stupendous number of times that people have come up to me, knowing that I had stood down. They said many things but two prevailed. One was a great respect and regard for this House, over and above the House of Commons. The people of this country appreciate what we do here and the manner in which we do it. They appreciate the intelligence and experience we bring to bear on it.

The other thing that was and is said to me again and again is, "We are completely lost. You legislate so much, so furiously and so complexly that we cannot feed into the process". There is a lack of ability for the public-those who might be inclined so to do-to react to this very important Bill. The lack of opportunity, which will not be there because of the way in which the Bill is being dealt with, is not a small issue. It is part and parcel of the disconnectedness and disaffection that so many of our fellow citizens feel towards this place at this time, quite apart from the sad expenses saga, and so on. I had to make that point.

I will refer briefly to some of the drafting in the Bill. It is interesting. I recently had cause to look at the public Acts of 1906. That was the year that Bonar Law lost to Campbell-Bannerman. The total length of all the public Acts of 1906 is less than that of this Bill. That gives pause for thought. Some of the drafting in the Bill is of extraordinary complexity. We will not have the chance to unravel and improve it in the normal way, as we should. I cite Clauses 54 to 57, which deal with the removal, expulsion, resignation and disclaimer of life peerages, and with Peers convicted of crime, and so on. They are almost impenetrable even to Members of this House. They are not fit for purpose. Had we the time, I think we would have uncovered internal contradictions within those four clauses.

If you suffer from insomnia, take to bed Clause 29 of the Bill. When you cannot get your mind off whatever it is, read subsection (4)(d) of that clause. In trying to understand it, you will surely nod off. I defy anybody to make sense of that subsection. Contrast this with the Bill of the noble Lord, Lord Steel, which is, I am afraid, a stunning indictment of what we have here.

I will briefly say, as many have, that had we had the opportunity to consider the Bill and table amendments to it, many of us would have done so. Many examples have already been given. Why, for example, do we still not have votes for Members of this House? That is not quite true, because the Bishops have them. On what conceivable basis can the Lords spiritual have more temporal power than the rest of us? It is bonkers! We might also, I suggest, have considered putting in a clause which allowed those of us who do not like titles not to have them forced on us. We could simply call ourselves Andrew Phillips MHL-Member of the House of Lords. It could be entirely voluntary. Titles are great for those who want them and, for those who want to keep them to their graves, better still. However, for those of us who do not like them, why should they not be voluntary? It might be a small step in the direction of lessening the distance that can exist between us and the public.

I would have liked to have seen reference in the Bill to what has certainly been referred to in the debate-I cannot remember by whom; I think it was my noble friend Lord McNally-a referendum on the composition of this House, with choices. Was not the noble Lord, Lord Willoughby de Broke, the author of that idea? Why should it not be in the Bill? The disagreement between us on the composition of the House is considerable and the public should decide who comprises this Chamber, not us. This is classically an issue for the public.

I wish to make two further points. The first relates in particular to Clause 65 which deals with the appointment of justices of the peace. Noble Lords may remember that the Constitutional Reform Act 2005 removed this power of appointment from the advisory committees under the Lord Chancellor to the Judicial Appointments Commission. A number of us said at the time that that might not be a great idea, and it was not. The commission simply cannot cope with the appointment of JPs. Perhaps the noble Lord, Lord Bach, may not be able to reply tonight, but I should be grateful if he let us know whether, under the change made by the Bill, the Lord Chancellor will take up that appointment role and, in particular, use local advisory committees-I hope under their present distribution, because there are indications that, as with everything else in our nation, consolidation is in mind, whereby bigger always equals better. Of course, we know it does not.

My final point was touched on by the noble Lord, Lord Williamson of Horton, and relates to protest law. Some of us were involved in the Bill that became the Serious Organised Crime and Police Act 2005-SOCPA. My only contribution to it was to object to Sections 132 to 138, which I and many others thought gave far too wide powers to the police to manage protests. Many of those provisions, which would fortunately be repealed by this Bill, related to that wonderful eccentric Brian Haw, who insisted on living with his tatty placards opposite the entrance to the House. I commend much of the repeal of SOCPA, but there is one blemish which, if we had time, we should have dealt with. Clause 61 and Schedule 9 of this Bill add a new Section 14 to the Public Order Act 1986 to allow the Secretary of State, by secondary legislation, to provide the requirements subject to which the police will in future manage protests outside this place. It is wholly contrary to our tradition to allow matters of basic personal liberty to be dealt with by means of secondary legislation. This is yet another matter which is not little, but is potentially very important, because we know well enough that secondary legislation is quite useless in terms of the powers of this House. We cannot amend it and throwing it out in toto is extraordinarily rare and, even then, ineffectual.

With those points I shall come to a close, and I am sorry that I have overrun my time.

Photo of Baroness Jay of Paddington Baroness Jay of Paddington Labour 8:13 pm, 24th March 2010

My Lords, it is a great pleasure to welcome back the noble Lord, Lord Phillips of Sudbury, and to congratulate him on what I suppose we might describe as his second-act maiden speech. It is many years since I followed the noble Lord in a debate which included House of Lords reform. It takes me back to a time when we were young, or at least younger, and very enthusiastic about constitutional reform.

Turning to today's business, I very much welcome most of the content of the Bill, but, like many other noble Lords who have spoken from all around the House, I very much regret its timing. None the less, it is worth stating briefly what in my view should be vigorously pursued in the Bill and, if necessary, be taken into the next Parliament. Whatever the niceties of potential Committee stages in a formal sense, none of us know how much or what will survive the lottery of the wash-up.

I am very pleased that at last we have the clauses in Part 1 putting the Civil Service and Diplomatic Service on a statutory footing. I particularly welcome the proposals to make the Civil Service Commission a statutory corporate body, and the specific measures to remove existing nationality restrictions on employment and office-holders, as well as those measures which create a separate code for special advisers. I agree with my noble friend Lord Howarth of Newport, who is not in his place at the moment, that if these and some of the other important provisions in Part 1 are enacted, we should be able in future to avoid some of the political controversies about advice to Governments which have plagued Ministers and officials in recent history. I hope that when the deals are done at the end of this Parliament, Part 1 will be relatively uncontroversial.

Turning to Part 3, on balance, I support the proposed referendum on adopting the alternative vote system for the House of Commons. I would have preferred to legislate for a referendum which offers a choice between AV and other systems, but a simple question should at least produce a clear answer on AV. I am a member of your Lordships' Constitution Committee which, apart from the much-quoted assessment that it has made of this Bill, has just completed a rather sceptical report on the general value of referendums. None the less, our findings support the potential use of referendums on constitutional matters, and changing the voting system for Westminster would certainly qualify. However, it is highly unlikely, given the opposition of the Conservative Party, that Part 3 will make it, because of the 11th-hour appearance of the Bill. However, I hope that your Lordships will return to the different voting systems and referendums at another stage.

I have to say that my greatest disappointment is with Parts 5 and 6, dealing with the House of Lords. Let me say immediately that I have no argument with the proposed reforms-although I sympathise with the amendment of the noble Lord, Lord Steel, on a statutory appointments commission-but my disappointment, indeed my sadness, is that the Bill has come so late and that the Government have not taken all the earlier opportunities that there have been to get these changes onto the statute book. It is no good for the Government to say now that the Bill has broken the decade-long stalemate on Lords reform. This stalemate could have been broken one year ago or two years ago if the Government had, as several speakers have emphasised, either picked up the Private Member's Bills introduced by the noble Lords, Lord Steel and Lord Oakeshott, or, as the noble Baroness, Lady Boothroyd, trenchantly pointed out, moved more rapidly on their own legislation. I would even agree with the noble Lord, Lord McNally, that we could have made progress on these or similar measures nearly 10 years ago if we had followed the Royal Commission report of the noble Lord, Lord Wakeham.

We are now in a position where these very sensible measures in Parts 5 and 6, which almost exactly reflect those in the second Bill of the noble Lord, Lord Steel, and those in the 2009 Bill of the noble Lord, Lord Oakeshott, on taxation, will now almost certainly be part of what we can all understand is frantic horse trading in the wash-up. It is worth reminding your Lordships-the noble Lord, Lord Steel, has done so already-that this time last year his Bill was properly considered in a Committee of the whole House. Although there were no votes in Committee, significantly his Bill was supported at Second Reading all around the House. I noted from the record that by the end of that debate, there had been 27 speakers in favour of that Bill and five against, but on that occasion the Bill did not find favour with the Government.

My noble friends on the Front Bench, notably my noble friend Lord Hunt of Kings Heath, who has passed this chalice to my noble friend Lord Bach, have always previously argued that accepting the limited and possibly interim measures suggested by the noble Lord, Lord Steel, would threaten more substantial and long-term change. My noble friend Lord Hunt of Kings Heath on 27 February 2009 said that the measures would be inconsistent with the Government's intention to legislate for long-term reform. But today, just a year later, we have the Government themselves introducing these types of provisions and, at the same time, my right honourable friend Jack Straw is shortly to produce clauses to create an elected second Chamber. I have to agree with my noble friend Lord Gordon of Strathblane that, without being entirely cynical, it is hard to understand the legislative or political logic behind this.

On the proceedings today in your Lordships' House I, perhaps surprisingly, agree with the noble Earl, Lord Onslow, on the important question that us Back-Benchers should ask the Front-Bench spokesman when the noble Baroness, Lady Hanham, winds up for the Opposition. What exactly will they support out of Parts 5 and 6 during wash-up? In spite of the opaqueness of that procedure, I understand it will largely depend on Opposition co-operation whether particular clauses go through. Considering the substance of Parts 5 and 6, I imagine the clauses which relate to our disciplinary regime in this House will be generally agreed. I am glad to hear from the noble Lord, Lord Henley, that the same will be true of the tax and residency measures in Part 6. We have already heard that the plan to abolish by-elections for hereditary Peers is opposed by the Conservative Party and presumably will not survive. To repeat what the noble Lord, Lord Steel, said, in the new Parliament we will continue to have what he described as the bizarre arrangement whereby the elections of Old Sarum seem positively democratic.

Like my noble friends Lord Howarth of Newport, Lord Lea of Crondall and many others, I am in favour of the amendment of the noble Lord, Lord Steel, on the appointments commission, for reasons I do not need to repeat which he eloquently advanced, as did my noble kinsman Lord Jay of Ewelme. I was particularly impressed by the recitation by the noble Lord, Lord Steel, of the nine previous occasions on which the proposal for a statutory appointments commission had been put. I re-emphasise to my noble friend the Minister that this was a commitment in the last two Labour Party manifestos. If the Government are now prepared to take forward some measures which they had previously criticised as piecemeal, I cannot understand why we cannot extend that inconsistency to the important question of the appointments commission.

In conclusion, as I said earlier, my overall feeling about this Bill is sadness that so many opportunities to make these kinds of important changes have been missed and concern that, because of the timing, some of those proposed today will not now happen. After the general election, I expect to be sitting exactly where I am today. My gloom this afternoon and evening may well be lifted when I see a radical reform Bill in the Queen's Speech. Given some of the abandoned manifesto promises of the last years, and Mr Cameron's stated preference for delay on House of Lords reform, those of us who genuinely want to continue change in your Lordships' House will probably need to go on in the new Parliament pressing for the kinds of incremental measures which I welcome today. I hope the momentum that my noble friend the Minister referred to in opening the debate will, in the next decade, be much greater than in the last.

Photo of Lord Denham Lord Denham Conservative

My Lords, would the noble Baroness really be prepared to see the agreement broken between the Government and the Opposition on hereditary Peers?

Photo of Baroness Jay of Paddington Baroness Jay of Paddington Labour

I am sorry, I do not follow the noble Lord.

Photo of Lord Denham Lord Denham Conservative

The noble Baroness said that she would like to see the elections for hereditary Peers end. She was in on all the agreements and ways the promises were made. Would she really sleep happy in her bed tonight if she let those promises be broken?

Photo of Baroness Jay of Paddington Baroness Jay of Paddington Labour

My Lords, the noble Lord invites me to enter yet again the argument about what constitutes phase two of House of Lords reform. The package of proposals that the Government have now brought forward would constitute such a stage.

Photo of Lord Wilson of Dinton Lord Wilson of Dinton Crossbench 8:23 pm, 24th March 2010

My Lords, before the noble Lord, Lord Steel, leaves the Chamber, I should say that I sympathise with what he said about a statutory Appointments Commission. I was a little involved in the setting up of the Appointments Commission and clearly remember the commitments given. They were an integral part of what happened and of the policy at that time. His cause is just.

I shall confine my remarks more generally to Part 1 of the Bill, dealing with the Civil Service. Speaking as a former head of that service, I follow what the noble Lord, Lord Armstrong, said about those provisions. I strongly support them. If they could reach the statute book they would put an end to a discussion which began some 150 years ago. There is a slight disagreement about how long it is, depending on whether you make your calculation from when the Northcote-Trevelyan report was submitted or implemented. There was a deferral at that time because Mr Disraeli opposed the proposals-he was a strong supporter of patronage. I do not intend to follow him in what I say.

I believe that the noble Lord, Lord Clark of Windermere, was the first person in recent times to express the Government's support for a Civil Service Bill, a few months after new Labour won power in 1997. As long ago as July 2000 in their reply to the Committee on Standards in Public Life, the Government made a firm commitment, collectively approved, that there would be such a Bill. As head of the service, I confirmed on behalf of the Government that there would be consultation on what the Bill would contain. In a speech made before I retired in 2002, I set out what it would cover. No one could call this part of the Bill rushed, except in the sense that it has finally come in right at the end of a Parliament.

I will briefly address two questions: why are these provisions in Part 1 needed and are they the right provisions? First, they are needed because, after decades of change and uncertainty-conditions which are set to continue-we need to be sure that those qualities of the Civil Service which have helped to make it the finest in the world are properly enshrined and protected, and not liable to be washed away and lost in a sea of relentless and sometimes impatient change. The report of the Fulton committee in 1968-on which the noble Lord, Lord Sheldon, who was in his place earlier, sat-was perhaps the start in modern times of continuous, some might say even Maoist, reform of the Civil Service. A great deal has been accomplished since then and much has changed, mostly without fuss. It would be tedious to go through a litany of those changes but it would also be unfair not to recognise how much has been done.

No Government own the Civil Service. Each Government, however rightly keen on modernisation, also have a duty of stewardship to respect those features of the service which are perennial-selection on merit, honesty and integrity, political impartiality and giving its best advice-and to leave it in a condition which will serve future Governments equally well. In return, the service is under an obligation to serve the Government of the day to the best of its ability, to support it in formulating its policies and to implement them excellently and energetically. In practice, that usually involves change. The service has never remained the same for long. That is the deal, but it must be based on respect for the fundamentals of the service. That is what Part 1 of this Bill is about. It is not about protecting vested interests or stalling reform but assuring Parliament and the public that those characteristics which they are entitled to expect in the service-the ones I mentioned just now and other features such as the absence of political patronage-are being preserved and respected.

Secondly, are the provisions in this Bill the right ones? In an imperfect world I believe that Part 1 has a pretty good shot at what is needed. Looking back at what I said in 2002 when I outlined what a Bill would contain, virtually everything is covered. I pay tribute to the sterling officials in the Cabinet Office who have patiently beavered away over the years under my successors in working up these proposals. I also pay tribute to the contribution of the Public Administration Select Committee in another place and to Dr Tony Wright. They have all prepared the ground well. As I said, this is not rushed legislation. The present Cabinet Secretary will be entitled to feel proud if Part 1 reaches the statute book on his watch.

Making the Civil Service Commissioners statutory, as Northcote and Trevelyan recommended, with powers to investigate, which are in the Bill, is hugely important. The battle between merit and patronage is never really over, and the commissioners are constitutional bedrock. In this connection, I note that a power is proposed in Clause 12 for the commissioners to make limited exceptions to the principle of selection on merit. That is sensible, but they must be in control. There must be no backdoor route for cronyism. Therefore, I am surprised to see in Clause 10(3)(a) a wholesale exemption from the merit principle for an appointment to the Diplomatic Service either as head of a mission or as governor of an overseas territory-a point which the noble Lord, Lord Wright, rightly raised. It is hard to see the reason for that exception. Is it really the case that such appointments are to be made on some basis other than merit? If so, on what basis? It would be much more sensible for any Government who wanted to make an appointment other than on merit to seek the agreement of the Civil Service Commissioners under the exemption in Clause 12, and I think that this provision could be dropped. I know that the Public Administration Select Committee said that up to three appointments could be made not on merit. I do not understand why it is all right to make three such appointments. Why not rely on the power of the commissioners?

I also welcome most warmly the regularising of the position of special advisers. I should like to speak for a moment in defence of special advisers. I think that most people in departments who have worked with them recognise that most do a job that is both valuable to the department and of use to the service. They play many different roles but it is wrong to represent the service as having been overrun by them. In my time-I believe that this is probably still the case-the Ministerial Code limited the number of special advisers to each Secretary of State to two. There may be exceptions. I remember that Mr Blunkett had one or two more to help him with his disability but I do not believe that that has changed. The main places where there are more than two are the Treasury and No. 10. It is not fair to most of them that their role has become a matter of public interest and concern, but the simple fact is that it has. There have from time to time been problems and the public are interested in them. Anyone who gives a lecture on modern government will know that one is always asked two things-one is about the role of special advisers and the other is whether "Yes Minister" is accurate.

I am particularly glad to see Clause 8(5), which specifies the things which a special adviser may not do. It is a late amendment but a very important one. I wonder whether the Government might also be prepared to amend Clause 16(4) so that the annual report to Parliament about special advisers contains information about their roles as well as their number and cost.

In conclusion, I hope very much that Part 1 of the Bill can reach the statute book and that all political parties will support it. It is a very important piece of potential legislation. It is tantalising that we have something so precious so close to achievement after so many years. I add my name to the list of those who are deeply unhappy about the way that the Bill has come forward so late in the day but I hope that this part will survive the wash-up.

Photo of Lord Norton of Louth Lord Norton of Louth Conservative 8:33 pm, 24th March 2010

My Lords, like the noble Lord, Lord Williamson of Horton, I served on the Joint Committee on the draft Constitutional Renewal Bill. The Joint Committee worked extremely hard, holding two two-hour sessions each week over a three-month period, in order to report by the end of July 2008. The energy and commitment of the committee was clearly not matched by that of the Government. Despite having considerably more resources than those of the Joint Committee, the Government took a year to respond to the committee's report and to introduce the Bill into Parliament. That was a delay for which we have received no persuasive explanation-indeed, as far as I can see, no explanation at all. When the Lord Chancellor appeared before the Constitution Committee last month, I put it to him that there had been a massive gap between the report of the Joint Committee and the introduction of the Bill. His reply was:

"There was, I agree, and I am frustrated about that. I am afraid that it is water under the bridge".

It is important that this House is not swept away in that water. What we are confronted with is not only a Bill of constitutional significance but also, as we have heard throughout today, an issue of process that is of constitutional importance. The primary task of this House is legislative scrutiny. It is our job to examine Bills in detail and to ensure that the provisions fulfil the intended purpose of those Bills. Our reputation-and, in large part, our legitimacy-rests on our capacity to fulfil that task.

Given that, what do we do with a Bill of constitutional import that is having a Second Reading only days before the likely end of the Parliament? It is a Bill that could and should have been brought before Parliament at a much earlier date, that was slow in being taken in Committee in the other place, that was loaded with new government clauses towards the end of its passage in the other place, and that was subject to time limitations both in Committee and on Report. Many important amendments that MPs, including members of the Public Administration Committee in the other place, wished to discuss were never considered.

The deficiencies with the process are all too clear, yet the Government appear not to fully appreciate this and to believe that much of the Bill can be agreed in the wash-up. This morning, the Constitution Committee received a response from the Government to its report on the Bill. The letter from the Minister, Michael Wills, is silent on the reason for the delay in introducing the Bill, adopts a completely Commons-centric approach, and makes statements such as:

"I must say that the Bill was before the Commons for seven months".

It would be more appropriate to say that the Bill languished in the Commons for seven months, with the Government showing no enthusiasm for getting it through in reasonable time to reach this House.

The Government appear to have had no qualms about letting the Bill get to this late stage, apparently on the assumption that it will go into the wash-up. The Lord Chancellor, in his evidence to the Constitution Committee, said that particular provisions would have priority in the negotiations in the wash-up. The Leader of the House of Commons has gone further, saying that if it goes into wash-up,

"it will be for the Opposition parties to negotiate with the Government so that we can get through a great deal of what was in the Bill", adding:

"If the Bill cannot find its way through the Lords, we will make sure at the wash-up that the provisions that the public want get through".-[Hansard, Commons, 4/3/10; col. 1019.]

I invite the Minister, in replying, to put on the record that the responsibility for where the Bill has reached rests solely with the Government. Perhaps he will also tell us what provisions are demonstrably those "that the public want". By "demonstrably", I mean where there is clear empirical evidence, not some spurious assertions of the sort the Minister advanced this afternoon. Perhaps he will also put on the record that it is not, in any event, the task of either House simply to nod through what the public want. Indeed, we know that the public would not expect it. Surveys, not least that carried out by Ipsos MORI for the Constitution Unit in 2007, show that what the public want is a House of Lords that considers legislation "carefully and in detail". That is what 73 per cent of those questioned want. That is what we are being denied the opportunity to undertake-careful and detailed scrutiny.

We are being denied that opportunity not least because of the presumed convention that a Bill that completes its passage in one House and is given a Second Reading in the other is then eligible to be considered in the wash-up. The genesis of this convention is unclear and its rationale unsustainable. A convention is only such when those who are affected by it accept that it is necessary to abide by it in order to make the process work efficiently and effectively. Even if the Front Benches have been parties to it, it is not clear why the House should be bound by it. We make much of the fact that we are a self-regulating House, but on occasion we appear to abdicate that responsibility.

I advance the proposition that we should not accept that because a Bill has reached Second Reading, that makes it automatically eligible for going into the wash-up. That applies especially where the Bill is of constitutional significance, has been subject to time limitations in the other place and has had substantial provisions introduced late in its passage in the other place. The fact that the parties may agree it does not negate the principle involved. The integrity of Parliament, and certainly of this House, is at stake.

What, then, do we do? There are two options. The clearest and most sustainable in terms of principle is that the Bill does not go into wash-up or that we do not accept anything emerging from it. The other is to agree only those provisions which are either small, uncontested clauses, where no queries have been raised about their substance and drafting, or provisions which have already been considered in detail by the Joint Committee on the draft Bill or by the other place and where the need for the provision is compelling and could not be left to be implemented through a Bill in the next Parliament. If we are persuaded that some substantial provisions may be considered, then we should apply sunset clauses to those provisions.

Mitigating against any claim that the case for enactment is compelling is Clause 95. Few clauses take effect upon enactment. Eighty-one clauses will come into force on such days as Ministers may by order appoint. Mitigating against any claim that the provisions have been examined in depth are the reports of the Constitution Committee and the Delegated Powers Committee. The report of the former makes clear that core parts of the Bill, as on the Civil Service, were subject to partial scrutiny in the other place and that others were not considered at all. Both reports raise questions about the provisions of the Bill, questions that cannot be adequately addressed in the time remaining before the end of this Parliament. This Bill, as so many Members have said today, demonstrably requires further detailed consideration.

The onus rests on the Minister to justify why this Bill is only now before us and to demonstrate which provisions, if any, meet the criteria I have outlined. If he cannot do that, then I suggest that the best solution is for the two Front Benches to commit whichever party is returned at the election to reintroduce the Bill at the start of the new Parliament. Then, and only then, can we subject it to the thorough scrutiny that it requires and fulfil the fundamental role expected of us by the public.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office 8:42 pm, 24th March 2010

My Lords, one of the great pleasures for me this evening has been the return of my noble friend Lord Phillips of Sudbury. It is a tremendous moment for me. I have often listened to him in debate and it gives me great confidence to pick up his theme at the end of his speech because I want to talk about Clause 61. It concerns the right to protest in Parliament Square. As my noble friend said, those restrictions were ostensibly imposed because of security risks posed by the possibility of bombs being hidden in Brian Haw's sleeping bag, but they were actually imposed because the Government were getting so embarrassed by and fed up with the continuing anti-war protests.

Like this evening's proposals, those provisions were passed in great haste without proper scrutiny. That led to the most ridiculous situation where the legislation required protestors to apply at Charing Cross police station for permission to protest. Overnight, this gave the police a mountain of paperwork and less time to tackle real issues of crime and security. Noble Lords will remember that the police had to issue permission for someone who wanted to have a picnic with the word "peace" iced on their cake. The whole crazy system was brilliantly ridiculed by the comedian Mark Thomas in his lone demonstrations. However, it had serious consequences for some people conducting peaceful protests. They were fined substantial sums because they had not got permission-£250 for a tea party protestor-and they got a criminal record. In an effort to stop that state of affairs, I introduced a Bill to end the system, but Conservative amendments meant that it never got past Second Reading.

When Gordon Brown became Prime Minister in July 2007, he said that he would change the protest laws. What we have before us in Clause 61(1) is the realisation of that commitment. However, it is a typical Labour idea of a change. Clause 61(1) repeals what is unpopular and unworkable, but Clause 61(2) immediately replaces it. The Minister said that this change has broad public support. It does but, as the Select Committee on the Constitution states, we have to be wary of Part 2 because the new powers,

"confer considerable discretion on the Secretary of State and on senior police officers".

It makes an important point about the stark contrast between this approach, which gives the Secretary of State the power to have these orders, and the draft Constitutional Renewal Bill, which simply repealed the draconian SOCPA powers without replacing them.

The Delegated Powers and Regulatory Reform Committee also has great reservations. It does not believe that we should deal with this issue so lightly. It recommends that, if orders need to be made under Schedule 9, that must at least be done by affirmative procedure and not, as the Government propose, by negative procedure.

The Minister may say that the Bill states that the order may not apply to an area more than 300 yards from any entrance to Parliament and claim that that is an improvement. However, that effectively takes out Parliament Square, Old Palace Yard, Abbey Gardens, College Green, Victoria Gardens, Westminster Bridge and most of Whitehall-in other words, any place near enough to Parliament to make yourself seen and heard by parliamentarians arriving at Parliament. Anyone who was outside today will have seen a large number of demonstrations and a large number of the press on College Green, who could almost be said to be more aggravating to get through than all the demonstrators put together. Parliament cannot be said to be at the heart of our democracy when ringed around by a cordon sanitaire. It is already removed enough from the real world. E-petitions and virtual protests are not a substitute.

The Minister knows as well as I do that there are sufficient powers under the Public Order Act to control demonstrations, marches and assemblies. There are also sessional orders to control access to Parliament. We also extended the powers in the Terrorism Act, which gives the police extremely wide powers to stop and search, including in the area around Parliament. The attempt to clamp down on demonstrations has always been more about cleansing the area around Parliament, a practice that is more associated with totalitarian regimes. We will not get a chance to amend the Bill, so I can only hope that in the wash-up this outrageous backsliding is removed, with Clause 61(1) remaining and Clause 61(2) taken out.

Photo of The Earl of Sandwich The Earl of Sandwich Crossbench 8:48 pm, 24th March 2010

My Lords, I return to Part 5. It is already 100 years since noble Lords embarked on the first substantial reforms of this House and we are fast approaching the centenary of the Parliament Act, which made major changes to the powers of the House. Since then, we have had a succession of attempts, culminating in the 1999 Act, which at times have appeared to come very close to a conclusion. I am one of a substantial group in the House who would like to have seen all the sensible provisions of the Steel Bill implemented and fully discussed in this Bill-not as a last throw of the present Government but as a reasonable, practical way forward for this House. I pay tribute to the noble Lord, Lord Norton, for all that he did for the Steel Bill and for the advice that he has again offered to the Government this evening.

The Government have not only missed this opportunity but, as others have said with more authority, after five White Papers and numerous reports they have offered up an extraordinary hotchpotch of legislation that offends against every convention of the House-"mismanagement" was the term used by my noble friend Lady Boothroyd. It seems that, for the lack of a Committee stage, even the welcome provisions derived from the Steel Bill may not survive the wash-up. I fully concur with the judgment of the Constitution Committee. I am sure that by now the noble Lord, Lord Bach, is among those who are sorry, if not ashamed, at his own party's performance. The burden falls on him personally to explain to his very senior noble friends what has happened.

As a so-called excepted hereditary Peer, I should like to say a word about the group of 92 men and women who have been lined up, for more than 10 years, to walk the plank. It is surely time that the by-elections were ended, the sword of Damocles lifted and the rest of us allowed to continue our work in peace. After years of family service-in my case, nearly 350 years this summer-and after a contribution of considerable time, experience, colour and vitality to the work of the House, as we have seen this evening, it is disparaging to hear ourselves referred to in a casual and negative way. Phrases such as "ending the hereditary principle" easily slip into "withering on the vine", "dying off" and even "killing off". Such comments, whether made here or in the media, have been harmful to a significant group of noble Lords who represent, perhaps, one in five of the active working Peers in the House. Hereditary Peers do not complain very much and keep their heads down-perhaps for self-preservation-but there is no doubt that without them the work of the House would come very nearly to a standstill.

I of course accept that there has been a small but vocal minority of hereditary Peers who would like to delay the reform process-I thought that a few of them might turn out today-but they have a point; they genuinely believe that the pact agreed in 1999 should still be honoured. They have become a deterrent to a sensible conclusion, but I hope that they have listened to the noble Lord, Lord Steel, or will read in Hansard what he said this evening. I do not agree with them because, like my noble friend Lord Cobbold, I believe that the passage of time is important and that attitudes must move on if we are to reach a solution.

I have no faith in Mr Straw's many times half-baked proposals to phase in an elected House. We already have an elected House and our constitution requires that we should respect the role of the Commons and not compete with it. I cannot see why the House should waste any more time on such proposals when we already have a mainly efficient and effective second Chamber that commands public confidence, another point made by the noble Lord, Lord Norton.

I should, however, like to see the provisions in Clauses 54 and 55 on suspension and removal enacted; I would go further than Clause 56 on resignation; and, like my noble friend Lady D'Souza, I would include fuller proposals for retirement, which in the long run-perhaps with modest financial inducements-would help to reduce the size of the House. I regard the establishment of a statutory independent Appointments Commission as an urgent matter, as do the noble Lord, Lord Steel, and many other noble Lords who have spoken. The Minister will have to explain why the Government cannot keep to their promises and why this important element has been left out or consigned to the never-never land of Lords reform. When will the parties agree to give up the system of patronage?

In conclusion, I take up a point mentioned by the noble Viscount, Lord Astor. I was a member of the Constitution Committee in 2006 and 2007 when it published its reports on war making-HL 236 and the follow-up HL Paper 51-proposing a new interpretation of the royal prerogative vested in the Prime Minister. The committee is quite right to remind the Government that they still have not revised let alone published the draft resolution that would give Parliament a more formal role in the process of deploying our Armed Forces outside the United Kingdom. Again, can the noble Lord kindly explain why this is the case? Against the background of the Iraq war, this was an important concession from the Government; it must not be allowed to disappear just because of the passage of time and when another conflict may be around the corner.

Photo of Lord Hart of Chilton Lord Hart of Chilton Labour 8:55 pm, 24th March 2010

My Lords, I am well able to spot mental fatigue when I see it and so I shall be extremely short and associate myself with the remarks of the noble Lords, Lord Norton of Louth and Lord Pannick.

I was a member of the Joint Committee on the Constitutional Renewal Bill and I am also a member of the Constitution Committee, so what I am going to say will not be surprising. In paragraph 7 of the Joint Committee's report, we drew attention to the fact that we were given just 10 sitting weeks for pre-legislative scrutiny instead of the recommended three to four months. We also noted that the risk of a constricted timetable may not have allowed us,

"to realise the full potential of the pre-legislative scrutiny process".

That sounds rather ironic now: we reported on the Bill in July 2008 but it took the Government almost exactly one year to produce a response and publish the Bill. That is not the mark of a vigorous Government responding to a report, almost all of whose recommendations they have in fact adopted; it is characteristic of a comatose rabbit.

It is obvious that neither House will have been able to scrutinise the whole Bill as major constitutional reform should be scrutinised. I have said that I am content with many of the Bill's proposals. That is not surprising, because the provisions in the main-in half the Bill-follow the recommendations of the Joint Committee. However, almost half the Bill has not received pre-legislative review. Points made at Second Reading in this House do not constitute and cannot substitute for detailed scrutiny, which is the very essence and raison d'être of this House. Any suggestion that this, a constitutional Bill, should be left to wash-up is not right in principle or practice. For a Bill that deals with constitutional reform to be handled in this way shows, I am saddened to say, that this House is regarded as an irrelevance.

Photo of Lord Turnbull Lord Turnbull Crossbench 8:57 pm, 24th March 2010

My Lords, this Bill falls way below its advance billing with which we were provided in July 2007. It fails to address the most important constitutional questions: funding of political parties, which I do not think has been mentioned today; strengthening the ability of the legislature to hold the Executive to account; the anomalies left by the devolution settlement; the composition and role of this House; and many more issues.

Picking up the Shakespearean theme started originally by the noble Lord, Lord McNally, I compare this to the witches' cauldron in Macbeth-lots of disparate things like,

"Eye of newt and toe of frog", thrown into the pot, some of which will deserve to survive the wash-up, and some of which will not. However, this debate has served an important purpose: it has allowed those of us who will not be in the metaphorically smoke-filled rooms to mark the card of those who will be. I hope they will listen to the views we have expressed in deciding whether to allow something to go through or to perish.

Like the noble Lord, Lord Maclennan of Rogart, I support a referendum on our voting system, but like him I also question the timing. The public have not been taken through the process in which we get to AV. There are many systems; people need to be taken through them more, and this process has been skipped. In my view, it would be better if after the election someone is commissioned to analyse the results and produce some view of what might have happened under these different systems, then people would have a clearer idea of what these different systems offer.

I support the shortening of the 30-year rule. I suggested to the Dacre committee two years of release every year until the target time was hit. However, something has gone wrong with the drafting of Clauses 85 and 86 which even Andrew Phillips MHL has not spotted. There are in fact two 30-year rules: the time for transferring documents to the Public Record Office, and the time for which the FOI exemptions apply. In their response to Dacre, the Government said that the two procedures should be "concurrent"-in paragraph 36-but that the first moves to 20 years after a phased transition and the second moves to 20 years immediately. I think that it is a case of two different parts of Whitehall having got into muddle and needing to sort it out.

An important proposal, about which many noble Lords have spoken, is placing the Civil Service on a legislative basis. The Northcote-Trevelyan report recommended this 150 or so years ago, saying that it could be accomplished in a "few clauses". This is precisely what we have. I would describe what is proposed as minimalist. That description should be regarded as a compliment, as it is precisely what the approach should be. It leaves most of the status quo unchanged. The Civil Service remains a professional career service recruited on merit and through competition. It serves the Government of the day, but stands ready to serve with equal commitment the Government of the next day. It is managed by a Minister for the Civil Service-a role which in practice is delegated to the Permanent Secretaries-and not by either Parliament or, as some have suggested, a board of governors of the great and the good. The Civil Service Commissioners are independent, appointed by the Queen. The Civil Service Code is not enshrined in the statute, but the statute lays down certain fundamental principles which it must embody. It describes in a better way than has been done previously the role that special advisers are allowed to play, but it does not set a limit on their numbers. That is the right approach, because I absolutely guarantee that, whatever limit one has set, there will that many special advisers immediately afterwards, and it would become an obstacle to efforts to reduce their number.

Virtually all this is in the present understanding. If the Bill changes very little, what, some may ask, is the point? The point is that it entrenches the existing arrangements which have served this country well for 150 years. It does not, however, freeze the development of the Civil Service. If the Government want to make a change- for example, and I would not recommend it, to allow Ministers to appoint their own senior officials-they can do so, but only by bringing that proposal to Parliament and seeking approval.

It is often said that the Civil Service is being politicised. Could it mean that people are being appointed for their political views? There is no evidence of this; indeed, the Civil Service Commissioners are involved in more senior appointments than used to be the case. Does it mean that civil servants have become too pally, too partisan? They are occasionally, but usually such cases are addressed, as in the case of Damian McBride, who was basically thrown out of the Civil Service and told to become a "spad". The real issue is that some of the work of the Civil Service, particularly policy advice and communications, has been diverted down political channels; that is, Ministers and their special advisers.

We have an opportunity to reaffirm the long-standing relationships and safeguards around the Civil Service. Should we take it, even it is not perfect? The principle of legislation has been on the agenda for 150 years. Specific drafts of these clauses to put it into effect have been in the public domain and been discussed, particularly in the Public Administration Select Committee in another place, for more than a decade. So this is not of those Johnny-come-lately proposals.

There are issues to refine in the proposals, some of which my noble friend Lord Wilson listed. I would support such refinements if opportunity allowed. However, my advice is to capture and enact what is before us, even if much of the rest of the Bill is jettisoned, because I fear that it may be some time before we have another opportunity.

Photo of Lord Rooker Lord Rooker Labour 9:04 pm, 24th March 2010

My Lords, I have been here for the greater part of the debate; I intended no discourtesy whatsoever to the Front Bench or to your Lordships' House in not being able to arrive earlier today. There are also the unique circumstances of the fact that this is the only opportunity that we will get to speak on this Bill. I would like to take a few minutes to speak against Part 3 regarding the referendum on the voting system.

I speak as a former supporter of the first past the post system, who changed his mind in the late 1980s to supporting proportional systems. Like most people who make the journey from first past the post to PR, I stopped off briefly in supporting the alternative vote; it is seductive, but a sham.

I also speak as the former chair of the Labour Campaign for Electoral Reform for four years. At the time, we succeeded in getting the Labour Party to have an inquiry into voting systems, which was chaired by my noble friend Lord Plant, and later getting the party to promise the referendum on the matter, which has been referred to earlier today.

The 1997 manifesto was crystal clear:

"We are committed to a referendum on the voting system for the House of Commons. An independent commission on voting systems will be appointed early to recommend a proportional alternative to the first-past-the-post system".

We now get to 24 March 2010, with this Bill in the House. Part 3 was not even in the Bill when it was published. It was put in in February this year, months after the Bill was originally published. After years of inaction with the Cabinet, which is broadly speaking against reform of any kind, we get this phoney proposal. I am very sad. It is a proposal which, by common consent, is the least radical change one could make to the existing, unfair first past the post.

The Secretary of State, in his introduction, made it clear that the alternative vote is a majoritarian system. It is not supposed to deal with any of the existing difficulties of the present system, such as unfairness, wasted votes, representation of substantial minorities, regional imbalances, and rural and urban balances. The alternative vote is open to and encourages tactical voting; that is, voting for something you do not really want to stop something else. The second preference is a tactical vote. Under the Bill, in Clause 29, it is possible for the ultimate tactical abuse of the election procedure to take place. This involves-and I guarantee that this will happen in some parts of the country-candidates asking supporters not to use the second preference where there are several candidates, so that close opponents do not benefit from the preferences. Anybody who has been involved in any votes like this knows that, if you have a choice about using the preferences, that is what happens.

So what do we do when we come to Committee? Do we make using the preferences compulsory, as in Australia's system-for the first time, encourage compulsory voting? Many people have fundamental objections to that. This Bill builds in an abuse. How can voters make a real choice with the alternative vote when they do not know who will top the first preferences, yet are asked to list everyone all in one go as a choice?

We should have a system in which voters vote positively for what they want and believe in, as opposed to negative voting, which I think this Bill encourages. The Canadian experience of the alternative vote makes wonderful study for the cognoscenti, which we will all become. Alternative voting may result in one party winning all the seats; in another case, a party may win 99 out of 101 seats on a bare majority, less than 60 per cent of the vote. The alternative vote does not allow for effective representation.

The alternative vote-I say this in particular to the noble Lord, Lord Rennard, who made one of the speeches I disagreed with tonight-damages a third party whose vote is evenly spread. It will be the second preferences of that party which elect the others. Those third-party voters will not obtain any representation due to the alternative vote. Furthermore, it may not elect the person with the widest support. It is worth putting this sentence on the record: in the jargon of political theory, which my noble friend Lord Plant is much more versed in than I am, it may not elect the Condorcet winner. This is defined as the option in which a candidate who could beat all the other candidates in a straight fight should be the winner. Imagine four candidates in an election, three of them evenly divided with partisan support, but the supporters of each loathe the other two. The fourth candidate has few partisan supporters, but would be the alternative for all the others. The fact of the matter is that that candidate would go out on the first ballot and would never be able to go off against any of the other three.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour

Would my noble friend concede that on the supplementary vote that would not happen, which is why it was designed?

Photo of Lord Rooker Lord Rooker Labour

I did not want to get into this. The supplementary vote is more unfair than the alternative vote, as the London Assembly elections show anyway. I did not want to go down that route because I wanted to stick to talking about the alternative vote. That is what is in the Bill.

There are very unfair aspects to the alternative vote-it is a sham. It maintains the concepts of safe seats whereby voters are ignored by one party and taken for granted by the others. No real contest, where candidates offer choices to electors, takes place in those seats. We all know that the electoral battle is in the marginals under first past the post. The thing that makes me sad and a little angry is, frankly, the sheer arrogance of the Government, who are dragged to the promise of a referendum after 13 years and try at the same time to provide the answers to the present system. It is clear that there is no consensus among the politicians. If the promise originally made of a proportional alternative-a family of choices-cannot be kept, which is patently the case, the honest approach is to have a referendum as happened in New Zealand asking, first, if voters want to retain the present system or have a change and, secondly, if they vote for a change, to offer them a family of choices. Let the people decide. What is the problem with letting the people decide on the voting system for the House of Commons-by which time we will have had such reform that we will all have a chance to vote, I hope. Why should Ministers, most of whom do not want any change, make this decision? That is what is in the Bill and it is fundamentally wrong and unfair. It is also worse because, under the Bill, Ministers will write the question and set the date. What on earth did we set up the Electoral Commission for? It should have that power, not just to check the wording and the propaganda and look at how the money is spent. It should not be down to Ministers to write the question, which is then presented in secondary legislation to Parliament. Some of these people are my friends, but they are political leaders who in a lifetime have shown not the slightest interest in fair voting. Indeed, they have slagged many of us off who have converted or been there all the while-then they suddenly see the light. It is too late, too little; it is a phoney proposal and for the wrong reasons. It is treating the voters like fools, and I do not think that the public will buy it.

Nobody has raised this, but I would naturally expect that all the votes on this part of the Bill in this House will naturally be free votes. I assumed that they were so in the other place. If and when the chance arises-and I have been absolutely negative on this, because I wanted to concentrate on the alternative vote-I shall come forward with positive amendments so that a choice can be made. Those amendments would meet the criteria of the Hansard Society report of 1976, the Plant report of 1992 and the Jenkins commission in 1998.

Photo of Lord Tyler Lord Tyler Spokesperson for Environment, Food and Rural Affairs and Constitutional Affairs 9:13 pm, 24th March 2010

My Lords, as usual, I am delighted to follow the noble Lord, Lord Rooker. I think that he has made it possible for my speech to be slightly shorter, because he said some of the things that I might well have said. However, I would have found it difficult to do so with such vehemence, because he speaks not only as a member of the Labour Party but also as a former Minister.

This has been a fascinating and very wide-ranging debate, as we have had a good look for the first time at an extremely long-awaited Bill. The Prime Minister, as noble Lords will recall, took Parliament and the public on a roller-coaster of expectations from the moment when he entered Number 10. First he promised a substantial and steady diet of reforms, ranging from limiting the prerogative powers right through to changing the invidious double role of the Attorney-General, in 2007. Then we got a draft Bill that diluted many of those objectives, building in acres of ministerial wriggle room. Treaties were to be ratified by Parliament, except when they were not; war would be authorised by Parliament, except when it was not. The role of the Attorney-General would change, but not very much.

Along with several other speakers, I sat on the Joint Committee which considered that draft Bill and we found it pretty disappointing. I agreed very much with the noble and learned Lord, Lord Falconer, who called it the constitutional retreat Bill. Taking up that title, I was delighted to see-because I participated in the exercise-the work done by Democratic Audit, which I recommend to Members of your Lordships' House, because there in an annexe is a complete analysis of all the promises at various stages from the Prime Minister and other Ministers, and what has actually happened in terms of delivery from the moment those proposals were made.

Now we have this Bill, the CRAG Bill. It is on the edge of the election precipice, weaker in many places, more radical in a few others, but in all respects-as has been reflected so often today-very, very late. The Government have spent so long fiddling over the timetable-commissioning reports and committees-that they have missed the train. Worse, they have consolidated public disillusion with Parliament, rather than responding to the crisis of confidence that has been referred to so often today-by the right reverend Prelate the Bishop of Durham and the noble Baroness, Lady D'Souza, in particular, but also by my noble friend Lord McNally and the noble Lord, Lord Graham. There is a crisis of confidence in this House as well as in the other place and, sadly, the golden opportunity to change our politics is disappearing into the distance rather than coming any closer.

There have been references to the Bill being a Christmas tree and to the baubles that have been added to it. There have also been some boughs cut off, notably, of course, the role of the Attorney-General, referred to by other noble Lords. Another one is war powers: what should Parliament's role be when the country is on the brink of war? Reform of party funding has been referred to by the noble Lord, Lord Turnbull. This is extremely important if we are to get back confidence in the way in which our politics are run. Then there are fixed-term Parliaments: suddenly, out of the blue, the Prime Minister is apparently prepared to give up his opportunity to play party games with the timing of general elections.

I have listened to 38 contributions today and I cannot possibly deal with them all, but I shall make brief reference to my noble friend Lord Phillips of Sudbury, who we are delighted to see back here. We have missed him, because it is so evident from his contribution that he would have made a major contribution this evening to the interminable discussions we have had on some of these issues. For example, he was always a great protagonist for pre-legislative scrutiny. As has been referred to by many Members of your Lordships' House, we did give pre-legislative scrutiny-albeit, as has been accepted by the noble Lord, Lord Hart, it was inadequate for the timescale. We took evidence on, for example, the extremely important sections about the statutory role of the Civil Service.

The other theme which has been very strong today is the very detailed discussions that we have had on my noble friend Lord Steel's Bill at various stages. We went into great detail on that-I participated myself-so to suddenly pretend that it has appeared on the agenda this afternoon is naive in the extreme. We have had interminable discussions about taking a first step towards more comprehensive reform of your Lordships' House. It would be absurd to pretend that those sections of the Bill that pick up my noble friend's Bill have not had proper scrutiny.

Time and again, the dilemma that has come through our discussions today is that Members of your Lordships' House have said how outrageous it is that we suddenly have this Bill at this stage, there is not proper time to consider it and we doubt that there will be time to consider it in future-but, of course, there is one section of the Bill that they themselves think is absolutely vital to get on to the statute book in the next few days. The only problem is that it does not always seem to be the same section. That is the dilemma that the Government have thrown at us and it is their fault.

I was struck by the fact, for example, that the Constitution Select Committee conclusion-we have all paid tribute to the very good work that that committee does on our behalf, and the current report is part of that-says,

"we consider it to be extraordinary that it could be contemplated that matters of such fundamental constitutional importance as, for example, placing the civil service on a statutory footing should be agreed in the "wash-up"".

We have been at it for 150 years; we are not suddenly coming to this today. It was interesting that the noble Lord, Lord Armstrong of Ilminster, followed by the noble Lord, Lord Wilson of Dinton, and then the noble Lord, Lord Turnbull, have all pleaded with us to get on with that job. I find it extraordinary that the Constitution Select Committee should have picked up that particular part of the Bill as needing more scrutiny. We gave it a great deal of scrutiny in the Joint Committee on the draft Bill and, as has been so apparent in the important contributions from the distinguished selection of your Lordships' House on the Cross Benches, there are strong reasons for taking that part of the Bill forward to the statute book.

Fourteen years ago, the then leader of the Labour Party, Tony Blair, promised,

"a proper, directly elected second Chamber", yet we are still worrying about whether this appointed Chamber should have a statutory commission. Ninety weeks after Gordon Brown promised to reinvigorate our democracy, we are now facing the prospect of reactionary Tories fighting in the last ditch to preserve the hereditary principle in this House. They want to stop the public from having a say about the way in which they-not we in this House, but the public outside-elect Members of the other place. The noble Lord, Lord Campbell-Savours, gave us a serious warning: it would look very odd if this unelected House started to put major obstacles in the way of how the public have a say in this matter.

The Government seem to have set a dinosaur trap, hoping that Tory Peers will seek to delay and destroy these reforms. They have deliberately left it to the fag-end of this Parliament to introduce the Bill so that they can go to the electorate in the coming weeks and say, "Look at what those unelected relics in the House of Lords have been doing, stopping us getting through sensible and popular changes".

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour

That objection did not seem to trouble the noble Lord's party very much a couple of evenings ago on the Norwich and Exeter orders.

Photo of Lord Tyler Lord Tyler Spokesperson for Environment, Food and Rural Affairs and Constitutional Affairs

I was going to come to that point but, since the noble Lord overstayed his welcome by so many minutes on that occasion, I do not intend to do so simply to respond to his intervention.

Those who have been defending the indefensible today are going to fall heavily into that dinosaur trap. That is what the Government want them to do. For decades there has been a growing consensus, inside and outside Parliament, on the need to put the Civil Service on a modern statutory basis, on the urgency of the next steps towards comprehensive Lords reform and, more recently, on the clarification of the parliamentary standards legislation. We should not let Ministers play more games with those proposals that have broad agreement. Given that there has been such strong support across the parties in the other place for so many of these remaining reforms, pontificating about constitutional outrage begins to sound very hollow.

The same applies to the AV consultative referendum. I happen to agree with the noble Lord, Lord Rooker, that the question that the Government have come forward with is not the one that we should be putting to the electorate. As he says, we should be following the New Zealand formula. If we do not get acceptance in principle, though, which is what a Second Reading is all about, then the public should be asked this question-not MPs, nor even Members of your Lordships' House. Then we can move to discussing what sort of questions should be put to the people.

Let us recall, as the noble Lord, Lord Campbell-Savours, said, that the biggest single majority in the whole of this Parliament, 178, was in the other place in favour of a referendum. It would be extraordinary if, led by the noble Lord, Lord Henley, and the noble Baroness, Lady Hanham, Members on these Benches were to deny the public's right to have a view on how they elect the other place, and to do so in this House.

I come to the point made by the noble Lord, Lord Howarth. After several days of being told that this House should not vote to stop the orders that we have seen in recent weeks, for us to do that on this issue would be quite extraordinary.

The public, who will be watching, would be outraged if this still unelected House-now or later, before or after the general election-stopped them from having their say on fair votes. If any Member of the House does not want a fair voting system, fine-let them vote in a referendum. I am sure we can permit them to do that. Let them persuade others that a system which gives a party 55 per cent of the seats in the House of Commons in return for 35 per cent of the votes should be kept. Let them try to argue that. Let them argue, too, that it is right that not one single Member of the current House of Commons enjoys the support of more than half of the people entitled to vote in that constituency-not one. That is surely an important issue for the public to consider, and it is right that they should be given that opportunity.

We on these Benches will consider carefully the case for getting that single vital change through. If we are given the necessary time, we will co-operate on the other elements where progress can and should be made. After interminable discussion, we could at least show the public that we are taking action to revive our democracy, and we will try to meet the crisis of confidence in Parliament. But if the whole Bill fails, the public will know that the Conservatives-unelected ones at that-stood in its way. It will also be all too obvious that this is exactly the outcome that Ministers were hoping for.

Photo of Baroness Hanham Baroness Hanham - Shadow Minister, Shadow Minister 9:26 pm, 24th March 2010

My Lords, it is quite clear from the many speeches that we have heard from around the House that the Government have, by pushing ahead with this legislation at this late stage of their life, introduced a largely unadmired dog's dinner of a Bill, with serious procedural flaws. There have been fascinating speeches and, while I cannot hope to mention all those who have spoken, I will pick up some of the points as we go along.

First, on the constitutional issues, the most glaring comments were those about the damning report of the Constitution Committee-"damning" was the word of the noble Lord, Lord McNally. The right reverend Prelate the Bishop of Durham suggested that nobody had thought through the constitutional changes. That was picked up by many other speakers this afternoon and this evening. The noble Lord, Lord Pannick, a member of the committee, ended his contribution by saying that the wash-up procedure was not suitable for this Bill. That was underscored by other speakers. The noble Lord, Lord Grenfell, said that the Constitution Committee was right to conclude that this Bill is no way to undertake the task of constitutional reform. The noble Baroness, Lady Boothroyd, expressed deep concern at the manner in which this Bill has been constructed and brought forward. My noble friend Lord Onslow said that he believes that the Government have acted with contempt for Parliament. This was a great collection of comments for a constitutional Bill.

While there are some sensible reforms in Part 1, on the Civil Service, as identified by my noble friend in his opening speech, they are limited in their effect, as others have said. My noble friend said that it omits the whole sector of quangos; it does not refer to them at all. My noble friend Lord Astor drew attention to problems on these clauses and the noble Lord, Lord Armstrong, was strongly of the view that the changes to the Civil Service needed further discussion, although the noble Lord, Lord Wilson, was more in favour of letting it all go through.

Parts of the Bill are nothing short of government grandstanding. The government colleagues of the Minister have produced those. My noble friend Lord Henley drew attention to the political gimmickry of those attempting to introduce, as an add-on to this hotchpotch of a Bill, a system of proportional representation for general elections. I listened with great interest to the noble Lord, Lord Rooker, who dissected and filleted the alternative vote, which I think we all agree would, by virtue of its principles of elimination and redistribution of votes, undermine the party system that is part of our democratic process. The noble Lord, Lord Howarth, said that it would ensure that the outcome of the election might well not reflect the wishes of the electorate. Far from providing a system to repair the status of MPs, as suggested by the Minister, it will serve only to muddy the water further.

There are, too, the Mandelson escape clauses in Part 5, which would tinker with the membership of this place but not improve it and would breach the undertaking given by the noble and learned Lord, Lord Irvine, on the hereditary Peers. My noble friend Lord Denham gave an authoritative exposition on the background to the undertaking, which recognised that a transitional House would still have the electoral system for the hereditary Peers. His views differed from those of the noble Lord, Lord Steel, but the noble Lord may not have been part of the original discussions.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour

Perhaps I may ask the noble Baroness a very simple question. Would a Conservative Government give priority to a constitutional reform Bill?

Photo of Baroness Hanham Baroness Hanham - Shadow Minister, Shadow Minister

My Lords, when the Conservative Government come in, they will be faced with a great many problems and I do not know where a constitutional reform Bill would fit in their considerations. I do not believe that the noble Lord, Lord Campbell-Savours, really expected an answer.

As I was about to say, we welcome Part 2, which allows parliamentary ratification of treaties. In the Commons, the Government introduced clauses in Part 4 making amendments to the Parliamentary Standards Act 2009. They were endorsed by my honourable friends in another place and, indeed, concern only the other place. I will therefore not comment on them further other than to note, as did other noble Lords, the point made by the Constitution Committee that the necessity of making so many changes to a law less than a year old demonstrates the inadvisability of making legislation in haste. Even though we are aware of the circumstances behind it, it is perhaps something for the Government to reflect on carefully, particularly as they have presented us with a Bill in the dying days of a Parliament that, if it got through, would make far-reaching changes but, as many noble Lords have said tonight, can never be subject to proper scrutiny in this place or the other. My noble friend Lord Norton of Louth underlined this; he also drew attention to the inordinate delays that have taken place, with the Bill having languished for months in the other place.

My noble friend Lord Henley made it clear that we do not think that Part 5 has been adequately thought through. Although a number of noble Lords have spent time discussing it, we do not believe that it has a place in the Bill. However, we think that Part 6 on the tax status of MPs and Peers is probably worthy of support. Indeed, my right honourable friend the leader of the Opposition has been pushing for something like this for some time.

We also support in principle Part 7. It repeals Sections 132 to 138 of the Serious Organised Crime and Police Act 2005, which had imposed restriction on access to Parliament Square. However, the Bill contains replacement provisions that are of concern. Schedule 9, referred to by the noble Baroness, Lady Miller, amends the Public Order Act 1986 by inserting new sections. The schedule applies to public processions or public assemblies where the route or assembly is being held wholly or in part within the area around Parliament. It provides that the Secretary of State may by order-this is a negative order-made by statutory instrument specify,

"requirements that must be met in relation to the maintaining of access to and from the Palace of Westminster".

This order-making power is very broad. I would be grateful if the Minister could clarify how the Government intend to use those powers if they ever have the opportunity to do so.

My honourable friends at the other end tabled an amendment that drew attention to the sometimes obnoxiously loud noise that protesters make. It is regrettable that the Government did not make time for it to be debated.

I shall also mention Clause 90, which my honourable friends in the other place did so much to get into the Bill. It will ensure that the count starts as soon after an election as possible. I know that creeping delays, which were becoming prevalent in some areas, meant that election results were not available on polling night. That was of concern to members of all parties and it is good that the Government were able to work with the Opposition to introduce this clause. However, the Electoral Commission has drawn attention to the difficulties of ensuring that returning officers, who may have to change their arrangements so close to an impending election, have time to do so. It has just issued draft guidance to that effect.

Sadly, however, there has been too little of that spirit of co-operation in evidence in this Bill. The Government have been much more concerned with putting down the Prime Minister's pet dividing lines than they have with true and fair constitutional reform. The fact that the Government have chosen to proceed with this Bill to Second Reading in this House, thus ensuring that its provisions will be among those considered at wash-up-but at wash-up only, without allowing this House its normal time to scrutinise the legislation properly-means that even those areas where we may agree might not be in proper form for implementation or support. Twenty-eight clauses, or nearly a third of the Bill, were added to it without proper debate in the other place, where the Government control the business. They will get none here. As many noble Lords have said, the Government could have found time to bring the Bill here sooner but clearly chose not to.

Noble Lords, including my noble and learned friend Lord Howe of Aberavon, have said that this Bill should not be the subject of wash-up but should just fall. The noble Lord, Lord Pannick, gave a clear view on the limitations of wash-up, particularly on constitutional issues. We deplore how little time we have been permitted to scrutinise this Bill. It is absolutely inevitable now that this is the only opportunity that this House will have and it is for self-serving reasons that that is so. If the Government are unable to reach agreement on any or all of these provisions, they must know that they have only themselves to blame.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice 9:37 pm, 24th March 2010

My Lords, first, and quite genuinely, believe it or not, I thank all noble Lords who have spoken in this debate. I have not agreed with every word-not with many of them, actually-but the quality of the speeches has been great. The expertise that we have seen on Civil Service reforms around Part 1 of the Bill has been especially illuminating. It was great to hear the "second maiden speech" of the noble Lord, Lord Phillips of Sudbury; I think that I recall his first, some years ago. For him to see the Government kicked from pillar to post must have been as though he had never been away, but it was good to see him back and I hope that he is here to stay.

Next, I particularly enjoyed the refreshing speech of my noble friend Lord Graham of Edmonton. It was one that it was good to hear in this House and on the kind of subject that we have kind of shied away from, no doubt for good reasons. I listened with bated breath for whether the noble Baroness, Lady Hanham, or anyone else on the Conservative side would try and answer the points that he made so well, but I am afraid that answer there was none.

I shall turn to a couple of quick points before going onto the amendment tabled by the noble Lord, Lord Steel. At the very end, if I have time, I shall come back to the Constitution Committee's comments. The noble Lord, Lord Naseby, who is not in his place now and was never down to speak, asked me in the opening whether Part 4 undermines the independence of the trustees of the MPs' pension scheme. The answer is that the measures in Part 4 do not undermine the independence of the trustees. These provisions have been agreed with the trustees themselves; they will still be able to manage the assets of the scheme. In the other place we accepted a number of amendments put forward by the trustees. I said that I would answer the noble Lord's query and I have.

The noble Lord, Lord Tyler, made a refreshing speech, if I may say so. It was not so full of the-I almost said self-righteousness, but I dare not use that word in this House even at this hour of the night-strong feeling that was expressed throughout the debate. His speech was a welcome difference. He asked about war powers. I should point out that war powers were never in the draft Bill. The Government concluded that they should be dealt with by way of a parliamentary resolution, as recommended by the Constitution Committee.

I now come to my main point. The very severe criticisms of the Government today in a sense cover up the fact that a large part of the Bill is agreed by a large number of noble Lords in the House. The Official Opposition describe it as a dog's dinner of a Bill. The noble Lord, Lord Henley, criticised Part 6 on the tax status of Peers and presumably MPs, but it worth reminding noble Lords opposite that on Third Reading of the Bill in another place, the honourable Dominic Grieve, shadow Secretary of State for Justice, welcomed large parts of the Bill.

He welcomed the move to put the Civil Service on a statutory footing; he welcomed the "Crown employment: nationality" provisions in Chapter 4 of Part 1; he welcomed ratification of treaties in Part 2; he welcomed the clauses relating to IPSA in Part 4; he welcomed what he described as some sensible amendments in respect of the House of Lords, which we also welcome. He said that he awaited with interest how the other place responded to them. I do not know how he expected the Front Bench in another place to respond to them, but it was certainly different. He welcomed the tax status of Peers; he welcomed the human rights claims against devolved Administrations; he welcomed the work on judicial appointments; he welcomed the proposal to beef up the Comptroller and Auditor-General's national audit role; and not least, he welcomed Clause 37 and Clause 90 on overnight counting, adopted from an amendment tabled by the Conservative Front Bench.

Listening to a Front Bench spokesman on the Conservative side one could not believe that the shadow Justice Secretary, presumably officially on behalf of his party, welcomed all those many provisions. The truth is that the Constitution Committee in its report was not very critical of many of the parts of the Bill which it looked at. There is a lot of support for the Bill and-

Photo of The Earl of Onslow The Earl of Onslow Conservative

Does the Minister not understand this vital point: constitutions are not changed by wash-up; they are changed by due process and by people, irrespective of the things with which I may or may not agree in the Bill? It should be done only by due process. In America, two-thirds of all states have to agree. We are doing this by wash-up. What a pathetic way of doing it.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

The noble Earl makes his point, which has perhaps been made ad nauseam today. It is a good point, which I shall deal with in my own time at the end of my remarks.

I want to deal with the amendment of the noble Lord, Lord Steel, and I genuinely praise him. He has had to put up with a great deal of frustration, I suspect, over the past two years as a consequence of reactions to his proposals, not just from the Government but from other parts of the House as well. He has worked tirelessly to modernise the House in this respect and we pay genuine compliment to him on his work. I cannot, though, support his amendment to the Second Reading tonight. He may not be surprised to hear this. Peers will have different views on this but, rightly or wrongly, the Government are committed to creating a second Chamber with a democratic mandate-one where the House is elected. We will, as I said, shortly bring forward concrete proposals for further reform.

If a reformed second Chamber were to be 100 per cent elected, an appointments commission-as I think the noble Lord, Lord Steel, said in his own speech-will obviously not be needed. However, if the House were, for example to be 80 per cent elected, any commission would need a different remit and different powers from the commission proposed by the noble Lord.

Photo of Lord Lea of Crondall Lord Lea of Crondall Labour

What is the earliest date that the new elected Members could possibly join this House?

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

I am not in a position tonight to give details of the Government's proposals. Much as my noble friend may tempt me, I will not fall into that trap. The aim of the Government, if re-elected, would be substantial reform of the House of Lords in the way I have described.

My point was that any commission would need a different remit and different powers, which would have to be appropriate for a partly appointed House. This really is an issue that is best left to a properly reformed House. If it should turn out to be a partly appointed House, the issue of a statutory body arises then and there. I am sorry not to be able to support the noble Lord tonight. I appreciate what he and many of his supporters around the House-I accept that he has many supporters on this point-have said.

I will now deal as quickly as I can with some of the major points raised on the Bill. Part 1, on the Civil Service, is one of the crucial parts of the Bill. Many noble Lords-I will not name them all-spoke to this part. There was general agreement that this reform was not only very long overdue, but-as importantly in a way-that the Government had pretty well got it right. Certain noble Lords had concerns about parts of it but, on the whole, it was seen as not a bad attempt.

The noble Lord, Lord Armstrong of Ilminster, said that he would like to see the PASC amendments made to the Bill. He mentioned the amendments to Part 1 recommended by PASC in another place. The noble Lord will, I hope, be pleased to hear that we tabled an amendment in the other place which places restrictions on the activities of special advisers. This mirrors amendments put forward by PASC. If I may say so in passing, I was delighted that the noble Lord, Lord Wilson, made some favourable comments about special advisers. My experience as a Minister in several departments is that, by and large, special advisers do a very good job and the civil servants who work alongside them think so, too.

The noble Lord, Lord Armstrong, criticised the fact that heads of diplomatic missions are excepted from recruitment on merit. I know that there is a lot of feeling about that. The noble Lord, Lord Wright of Richmond, and other noble Lords mentioned this. I say this about diplomatic appointments: the exception which allows appointments to certain senior diplomatic posts has only ever been used very sparingly. I think that was also said in argument in the debate. It will continue to be used only on an exceptional basis and will involve the direct approval of the Prime Minister.

The noble Lord, Lord Maclennan, also spoke on this issue. He raised the issue of the commissioners' involvement in promotions within the Civil Service. The Bill attempts to replicate existing practice in that field. He also raised the issue of the commission having the power to conduct investigations into potential breaches of the code, irrespective of whether a complaint had been made. There was considerable discussion on this in pre-legislative scrutiny of the draft Bill. The Government strongly echo the Joint Committee's views that the proposals should not place any undue pressure on the resources of the commission or risk politicising its role.

I wish to move on, due to limited time, and say how much the Government are grateful for the support that they have had at least on that part of the Bill.

On ratification of treaties, one or two noble Lords-not many-thought that noble Lords should be afforded power to veto ratification of a treaty. The noble Lord, Lord Grenfell, who has a lot of experience, suggested that, and other noble Lords discussed it. I am afraid that we do not agree. The House of Lords has a vital role to play in providing expert advice on treaties, but I have to be blunt: legislation should reflect the primacy of the House of Commons as the elected Chamber. The matter was considered by the Joint Committee on the Draft Constitutional Renewal Bill, which agreed with the Government's proposals as they concerned the balance of power between the two Houses.

My noble friend Lord Grenfell asked: will the Government support the setting up of a parliamentary Select Committee? The Government are not opposed in principle to a Joint Committee or Select Committees on treaties if there is sufficient support. It is for the Houses to decide upon the development and operation of such arrangements. There is no need to legislate to set up such a committee. Nothing in the Bill would preclude it.

Why are the Government putting the Ponsonby rule on the statute book? The answer is that the Government are of the view that the present arrangements for parliamentary scrutiny of treaties should not only be placed on a statutory footing but strengthened to give legal effect to a negative resolution in another place. Part 2 achieves that purpose.

I move on to Part 3 relating to the alternative vote. I certainly do not have time to enter into the expert argument about AV compared to other systems. I enjoyed very much the speech of the noble Lord, Lord Rennard, but was a little worried by what it is that he lives for. I hope that there are other things in his life that give him as much pleasure as winning by two votes. His expertise obviously shines through in any discussion on this. There can be no reason at all why there should not be a referendum and, obviously, that is what we propose in the Bill. We, too, would very much like it to become law.

Photo of The Bishop of Durham The Bishop of Durham Bishop

Would the noble Lord, Lord Bach, not agree that, in the light of what has been said-not least by the noble Lord, Lord Rooker-there is a strong case to be made for having more than two options on the referendum paper? Having just two options would seem to close us in in a way that several speakers have said would be undesirable.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

I would like to agree with the right reverend Prelate, but for me, at least, and, I should have thought that for many Members of another place and many noble Lords, the idea that there should not be one Member of Parliament for one constituency makes the issue very difficult indeed. That is absolutely the primary reason. Having multi-constituency MPs would indeed be of great concern to the Government. It is an important principle.

Photo of Lord Maclennan of Rogart Lord Maclennan of Rogart Spokesperson for the Cabinet Office, Spokesperson for Constitutional Affairs, Spokesperson for Scotland

Does the Minister not recognise that the proposal of the Jenkins commission accepted the argument for having single-Member constituencies? That is why it proposed AV+, which would involve additional Members to ensure proportionality.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

I think that it is the issue of additional Members that caused the Government some problem with that. All those who serve in the House of Commons should represent a particular constituency. I do not want to get into this argument tonight. I know that there are strong feelings on all sides.

Photo of Lord Norton of Louth Lord Norton of Louth Conservative

My Lords, I do not quite understand the argument. The Minister seems to be saying that there should be a referendum and that people should be asked about AV because the Government approve of it but that they cannot be asked about other systems because the Government do not approve of them.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

Most Members of Parliament, even on the noble Lord's side, would agree that we break with great difficulty the principle of one Member in one constituency.

On the House of Lords, the issue is pretty stark. I was most impressed by the noble Lords elected as hereditary Peers, two of them on the Cross Benches, who seemed to see the sense in what we propose in getting rid of the hereditary by-elections. I know that there are strong views on the other side, but we think strongly that the time has come to end the farce of these elections. Noble Lords may remember a few years ago when we had a vote on our side for a hereditary Peer. There were 11 candidates-surprisingly few by the standards of all those who could have stood. The electorate numbered three. Do I really need to say more about what frankly now looks an absurd system?

The other parts of the Bill on the House of Lords seemed to get fairly general support. On whether there should be an ability to retire rather than resign, we are concerned about what the difference would be between the two. I suspect that, if both words were used, a resignation would be looked at in a slightly different light. No doubt we can discuss that issue in another context, too.

Noble Lords asked whether the measures in the CRAG Bill are designed to allow-

Photo of Lord Denham Lord Denham Conservative

Before the noble Lord leaves Part 5, I believed that the whole package offered by the Government to hereditary Peers would be honoured until the final and definitive stage of reform had taken place. Where did I go wrong?

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

Undoubtedly, the noble Lord and others feel strongly about this matter. We are now 10 years down the line. For 10 years, these by-elections have taken place.

Photo of Lord Denham Lord Denham Conservative

The whole point is that this was a promise given by the Government that caused me to vote for getting the Bill through quickly, which I would not otherwise have done. The Government are reneging on that promise. I cannot understand how they can do that.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

The answer that the noble Lord, Lord Steel, gave to this question a bit earlier-

Photo of Lord Denham Lord Denham Conservative

I am not interested in what the noble Lord, Lord Steel, said. I would like an answer from the Government.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

You are about to get one if you will be patient. The answer is the same as that given by the noble Lord, Lord Steel. The changes to be made to the House of Lords, some of them in this Bill, represent a change from the position as it was after the Act was passed in 1999. I am amazed that the Conservatives are going to go into the general election on the basis that hereditary by-elections should be part of their manifesto.

Photo of The Earl of Onslow The Earl of Onslow Conservative

Constitutional anomalies such as me, one of the few elected Peers in this House, are here to remind people of our idiocy so that they will go for an elected House rather than an all-appointed House. That is the point of us. I will vote for an elected House and not for an all-appointed House.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

The noble Earl has reminded me yet again tonight why he is here-I will not use his phrase. That is why we will have in our manifesto a commitment to an elected House of Lords as quickly as possible.

I must move on. I should say something about the tax status of MPs and Members of the House of Lords. That subject has hardly been mentioned at all during the debate, which I presume means that the measures have pretty wide support. Again, it is an example of cross-party support for the Bill that somehow has not come out enough during the discussions.

I know that there are issues concerning public order. The noble Baroness, Lady Miller, as always, made a powerful speech, and it was a subject on which the noble Lord, Lord Phillips of Sudbury, concentrated. He said that it is wrong that the specification of the requirements that must be met in relation to access to and from Parliament should be left to secondary legislation. The power for the Secretary of State is strictly limited; it relates only to specifying requirements for access to and from Parliament. Secondary legislation here allows those requirements to be set out clearly and flexibly-for example, regarding what would happen if an entrance were closed for repair. The draft order is, in fact, in the Library. The Delegated Powers Committee has recommended enhancing scrutiny and making the order affirmative. The Government are happy to accept that recommendation, which I hope goes some way towards meeting the noble Lord's point.

The noble Baroness, Lady Miller, argued that the area around Parliament is too large. Directions within this area are limited. They relate only to the requirement to maintain access to and from Parliament. The 300-metre area is required mostly to secure vehicular access. We consulted the House authorities and the police on the size of the area. The provisions in the Bill are different from those in the SOCPA. They do not require prior consent for protests.

Other matters in the Bill were discussed, not least the Dacre report. Various comments were made by the noble Lord, Lord Pannick, and by the noble Baroness, Lady Young. The speech of my noble friend Lord Berkeley concerned one aspect of the review. The noble Baroness, Lady Young, asked why the change was being phased in gradually and wondered why it could not be done straight away. She asked whether we were covering our backs. The Dacre review recommended a phased approach to a reduction in the 30-year rule. Current estimates suggest that in central government alone departments hold at least 2 million files between 20 and 30 years old. I was asked about consultation on the transitional order. We will be working closely with central government and the wider archive sector to ensure that the transition to the new rule can be achieved in a fair and transparent manner.

The issue concerning the Royal Family was referred to by the noble Lord, Lord Pannick, and by my noble friend Lord Berkeley. This matter relates to the monarch herself and the next two in line to the throne. Just as it is a sovereign's right and duty to counsel, encourage and warn her Government, it is also the right and duty of the heir to the throne to be instructed in the business of government to prepare him for the time when he will be king. Both these sets of rights and duties rely on well established conventions of confidentiality that were never meant to be superseded by the Freedom of Information Act. Therefore, we think that we have approached this part of the Dacre review in the right manner.

I return briefly to the Constitution Committee. Its criticisms were stark and have been mentioned by many in the House this evening. I remind members of that committee and other noble Lords that this draft Bill was subject to pre-legislative scrutiny. Not all of it was subject to such scrutiny because some of it has been added since, not least at the invitation of the opposition parties. The draft Bill was included in the draft legislative programme, which is a public consultation programme, and it was preceded, as I said earlier, by 18 publications and consultation. I think that the fact that the Bill enjoys a lot of cross-party support is important. Many aspects of it have been endorsed by Select Committees. It should be noted that the Bill was amended by the Government but also by the Opposition and Back-Benchers in another place.

The other place did not have a vote at Second Reading or at Third Reading. Anyone who knows anything about the other place knows that that normally happens on a Bill that is fairly consensual. I know it does not take away from the need to scrutinise a Bill of this kind-indeed, of any kind-carefully. That is an important role of this House. I accept that, but to pretend that this Bill has just come from nowhere and has suddenly been plumped in front of the Constitution Committee and the House is not reality. The noble Lord, Lord Tyler, made that point in his speech.

I hope that large parts of the Bill can become law, because they are cross-party and are agreed by many people to be essential-

Photo of Lord Norton of Louth Lord Norton of Louth Conservative

The Minister has not addressed the point about why it took a year for the Government to respond to the Joint Committee and introduce the Bill.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

Let me be frank with the noble Lord. He has more knowledge of government than I will ever have, and he will know better than most that sometimes within government it takes time to come to an agreement about what should or should not be in a Bill. Various departments have different views about it.

Photo of Lord Norton of Louth Lord Norton of Louth Conservative

There was a draft Bill so the Government already knew what was in the Bill. Why did it take a year?

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

The noble Lord should know that a draft Bill is not always the Bill that is finally produced. The workings of government are such that sometimes these things take longer than they should. I concede that, but for the noble Lord to get too high and mighty about that happening seems very strange, given his great knowledge of how our system works.

Photo of Lord Norton of Louth Lord Norton of Louth Conservative

It took a year and, as a result, this House is being denied the opportunity to subject the Bill to proper scrutiny.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

I think I have got the noble Lord's point. I am coming up to 30 minutes. The House has been very patient with me. I hope that large parts of the Bill will become law because I think that they are not contentious but will add value in a number of areas of our life. I ask all noble Lords to consider carefully when deciding what in the Bill they want to see become law. Nothing could be worse than the Bill and all the hard work that has been done, for example, on the Civil Service or on the ratification of treaties, disappearing because of what is undoubtedly thought to be justified criticism of the process of this Bill.

Photo of Lord Steel of Aikwood Lord Steel of Aikwood Liberal Democrat

I have a couple of minutes to reply on my amendment. The whole House should be indebted to the Minister for the patient way in which he sat through the whole of this afternoon and evening and responded generously to all the points that have been made.

I shall first deal with the part of Part 5 that deals with retirement. I was a bit concerned by the wind-up speech from the Opposition Front Bench. I hope that the noble Baroness, Lady Hanham, made a slip of the tongue when she declared that Part 5 has no part in the Bill because, as the Minister said, that is totally contrary to what Mr Dominic Grieve said in the House of Commons on behalf of the Conservative Party, which appeared to be backed up by the noble Lord, Lord Henley, when he spoke at the beginning. I did not mention this in my opening speech, but I remind the House that in the Commons an amendment was tabled that provided that the retirement provision should include a reference to a five-year delay before any Member retiring from the Lords could stand for election to the Commons. That was one of the many amendments that were not reached; however, it was spoken to by Dominic Grieve and implicitly endorsed by the noble Lord, Lord Henley, the noble Viscount, Lord Astor, and my noble friend Lord Goodhart. I hope that the Government will accept that amendment so that the Conservative Party will feel able to support the retirement provision.

I say to the noble Lord, Lord Armstrong of Ilminster, for whom I have enormous respect, that it really does not do to go back to the years when it was a largely hereditary House of 900 people who came in when they felt like it. The House has changed completely since then. We have all accepted appointments as life Peers. Under the Bill, we will be able to retire if we do not want to come any more, but basically we are expected to do a job of work. We expect to have some reasonable facilities in the Lords and to receive all the papers. All of that will continue for people who may want to retire and it is only right that that provision should be made.

Secondly, on the question of hereditary by-elections, I have come to the conclusion that the noble Lord, Lord Denham, and I are both right. I am correct that the by-election provision was not in the Bill when the undertaking was given, but he may well be right that it was implicit in what was going to happen when the legislation went through. I do not know-I was not party to those discussions-but I do remember that at the time when the hereditary Peers were being retained there was a thought that they might all be given life peerages. If that had happened, of course, there would have been no by-elections. The Government are not removing the hereditary Peers but, as the noble Lord, Lord Cobbold, and other hereditary Peers have said, we have now moved way beyond the time when it was considered necessary to keep the by-elections going. They are now in their 10th or 11th year and they really are not sustainable. For that reason, it is right that they should go.

My last point is on the statutory Appointments Commission. The Minister gave me exactly the reply that I anticipated, word for word. The noble Lord, Lord Lea, was right to ask when we are going to see an elected Chamber; with the best will in the world, it will not be for many years. I noticed that every Member who spoke on the subject of the statutory commission supported it. We have had 100 per cent support for this provision and it is a great pity that it is not in the Bill.

I now come to the question of whether we should have a vote on this. My noble friend Lord Phillips of Sudbury keeps passing me notes saying that if we press it to a vote we will win. I should point out to him, rather rudely, that just because he has not been here for four years there is no reason why I should provide him with exercise. To be realistic, the section on the Appointments Commission as drafted in the Bill presented by the noble Lord, Lord Norton, and me, contained nine clauses. If this was a normal Bill going through to a normal Committee stage, I would be tempted to press the amendment to a Division. However, it will be in the wash-up-and we cannot seriously expect nine new clauses to be entered into the Bill in the course of wash-up. It would be pointless.

We have made our point. The Government have heard what the House has said. It is quite clear that we wish to have a statutory Appointments Commission. I hope that in the next Parliament we will get one. In the mean time, I beg leave to withdraw the amendment.

Amendment to the Motion withdrawn.

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

House adjourned at 10.14 pm.