Committee (and remaining stages)

Constitutional Reform and Governance Bill – in the House of Lords at 12:06 am on 7th April 2010.

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Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice 12:06 am, 7th April 2010

My Lords, with the leave of the Committee, perhaps I may say a few words on the position in which we find ourselves now. Following the debate earlier this afternoon on the Business of the House Motion and the assurances given by my noble friend the Leader of the House, my right honourable friend the Secretary of State for Justice and I have held a series of extremely constructive discussions with a number of Members of the House. As a result of those discussions, the Government now propose to proceed with the Constitutional Reform and Governance Bill this evening but to leave out a number of clauses, which I will detail in a moment.

For the most part, this has been done with the agreement of all who participated, but I owe an apology to the Liberal Democrats and their leader, the noble Lord, Lord McNally, and particularly the noble Lord, Lord Tyler, who saw us this afternoon and who did not agree to one item, although the document made available in the Printed Paper Office suggested that they had. Once again, I apologise to them for that.

As a result of these discussions, I hope that we will meet the clearly expressed will of the House earlier today to proceed with all the remaining clauses. For the convenience of the House, the Government intend that the following clauses should be left out of the Bill. They are: Part 1, "The Civil Service Etc", Clauses 20 to 23 and Schedule 3; Part 3, "Referendum on Voting Systems", Clauses 29 to 37-all of this part; Part 5, "The House of Lords", Clauses 53 to 58 and Schedule 8-all of this part; Part 7, "Public Order", Clause 61 and Schedule 9-all of this part; Part 8, "Human Rights Claims Against Devolved Administrations", Clauses 62 to 64-all of this part; Part 9, "Courts and Tribunals", Clauses 65 to 67 and Schedule 10-all of this part; Part 10, "National Audit", Clauses 68 to 82 and Schedules 11 to 14-all of this part; and Part 13, "Miscellaneous and Final Provisions", Clauses 88 and 89 on referendums and Clause 91 on Electoral Commission accounts.

Once again, on behalf of the Government I thank all noble Lords who participated in the helpful discussions today. All sides of the House were impressed by the suggestion made by my noble friend Lord Rooker today that there should be post-legislative scrutiny of this Bill. Speaking for the Government side, I can say that, if we are in government at the relevant time, it would be our intention to do that.

Photo of Lord McNally Lord McNally Leader in the House of Lords, Spokesperson for Constitutional Affairs , Liberal Democrat Leader in the House of Lords

My Lords, I thank the Minister for his courtesy in clarifying the situation. For the benefit of the House, I shall also clarify that we are in agreement with everything that he read out except in relation to Part 5, for the special reason that we believe that it is the equivalent to what they are doing down the other end of the Corridor in giving teeth to the new discipline for this House. We think that it is a great tragedy that it should be dropped. However, we will argue that case when we get to Part 5.

I take this opportunity to thank the Minister and the Lord Chancellor, who I thought at one stage was going to get arrested for either loitering or soliciting, so much was he around the Corridors of this place. As to what was raised earlier, we now have the good red meat of this constitutional reform Bill and we thank the Minister for the hard work that he did in getting us to this point.

Photo of Lord Strathclyde Lord Strathclyde Leader of the Opposition In the House of Lords, Parliament

My Lords, I, too, thank the Minister and the Lord Chancellor for the constructive way in which they approached discussions. I also thank the noble Baroness the Leader of the House for what she said earlier today when we had the debate about the whole wash-up process. We have signed up to this agreement, as we have to the whole of the wash-up. I know that there is concern about one of the clauses in Part 5, on the expulsion and suspension of Members of Parliament who have behaved badly. It is not vital that it should be passed today. If we are the next Government, we will certainly wish to find an early opportunity to put this right.

Photo of Lord Trefgarne Lord Trefgarne Conservative

My Lords, as one of those who was involved in the discussions on this matter, I express my appreciation for what has been agreed. As I have said before, I regret that a Bill of this magnitude should be subject to this difficult procedure right at the end of the Session, but that is a discussion for another day and I have nothing more to say on the matter.

Clauses 1 and 2 agreed.

Schedule 1 agreed.

Clause 3 : Management of the civil service

Amendment 1

Moved by Lord Norton of Louth

1: Clause 3, page 3, line 26, at end insert-

"( ) In exercising his power to manage the civil service, the Minister for the Civil Service shall have regard to the need to ensure that civil servants who advise Ministers are aware of the constitutional significance of Parliament and of the conventions governing the relationship between Parliament and Her Majesty's Government."

Photo of Lord Norton of Louth Lord Norton of Louth Conservative

My Lords, I shall speak also to Amendments 2, 3, 4 and 5 in my name. I shall try to speak briefly to each one.

With regard to Amendment 1, I served on the Joint Committee on the Draft Constitutional Renewal Bill. We recommended in paragraph 281 of our report that there should be a wider duty on civil servants to Parliament, alongside the duty to serve the Government of the day. Although some civil servants were sceptical about the practicality of enshrining such a duty in legislation, Jonathan Baume of the First Division Association acknowledged that the Civil Service had,

"an accountability and a responsibility, if you want, to Parliament over and above its day to day obligations to the government of the day, because the Civil Service is there not only to serve the government of the day but also to be in a fit state to serve future governments ... Enshrining that in legislation is difficult but it is something that is I think very important".

There was a not discouraging response from the Lord Chancellor, Jack Straw. He said that he was,

"concerned to ensure that officials and many other people have a sense of rather broader responsibility, a recognition really of the centrality of Parliament in our constitutional arrangements ... I would be ready to look at the wording but we have to make sure it does not collide with, say, the day-to-day duty that officials owe directly to the government of the day".

However, when the Government's response to the report was published a year later, it argued that the Civil Service Code makes it clear that civil servants have to act in a way that retains the confidence of all those with whom they have dealings, including Parliament.

This, though, does not quite meet the point; it is not sufficiently specific in relation to Parliament. My concern is that senior and other civil servants are not sufficiently well versed in the role and duties of Parliament, not least in calling government to account. There are occasions when civil servants have clearly overlooked Parliament in taking a particular action and not fully appreciated the need for the department to keep Parliament informed.

Given the problems in putting a duty to Parliament in legislative form, I have opted instead to place a duty on the Minister for the Civil Service to have regard to the need to ensure that civil servants who advise Ministers are aware of the constitutional significance of Parliament and the conventions governing the relationship between Parliament and Her Majesty's Government. This avoids the drafting problem while imposing a specific requirement on the Minister. It is not an onerous burden, but it is an important one.

I do not believe that the wide responsibility to Parliament should be subsumed under some wider provision in the Civil Service Code. There should be a duty on the Minister to ensure that senior civil servants are aware of the role of Parliament. That would be wholly beneficial in terms of the relationship between government departments and Parliament. It may be helpful to Ministers if their officials are well versed in the relationship.

I turn to Amendment 2. Under the existing provisions of Part 1, the Civil Service Commissioners may conduct investigations only when a complaint is made to them. The Public Administration Committee in the other place, the Civil Service Commissioners and the Joint Committee on the Draft Constitutional Renewal Bill have all recommended at some point that there should be provision for the commissioners to carry out investigations into the operation of or compliance with the Civil Service Codes without a specific complaint being made and without the consent of the Minister for the Civil Service being required. As the Joint Committee on the Draft Constitutional Renewal Bill made clear, in order to avoid undue pressure on resources or any risk of politicising the role of the commissioners, the provision should make it clear that the use of this power should be limited to instances where the commissioners consider there is sufficient evidence to warrant an investigation. My amendment incorporates this point.

In their response to the report of the Joint Committee, the Government argued that such a provision was unnecessary-commissioners could approach the Cabinet Secretary with complaints passed to them from other sources-and that it would risk the commissioners being diverted by politically motivated or vexatious correspondence. They also raised the resource implications of such investigations. One could argue against that that the commissioners are not there to act as a post box and, given their independence, should be in a position to undertake investigations only where there is merit in doing so.

The commissioners responded to the Government's concern in a letter to the Public Administration Committee of the other place last October stating:

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

Given the attention given to this issue by the Public Administration Committee, the Joint Committee on the draft Constitutional Renewal Bill and the commissioners, there is a case for following the recommendation of those bodies. The case for the new clause is therefore persuasive.

I turn to Amendment 3. Clause 10 provides that appointments to the Civil Service must be on merit, on the basis of fair and open competition. However, certain exceptions are provided in subsection (3). Subsection (3)(a) excepts persons selected for appointment to the Diplomatic Service either as head of mission or in connection with their appointment as governor of an overseas territory.

The Joint Committee on the draft Constitutional Renewal Bill recommended that the exceptions should be precisely that-exceptional-and should require the direct approval of the Prime Minister. The Public Administration Committee in the other place has gone further and proposed that the number to be appointed under this provision be limited to three. As the committee argues, the exemption as it stands is far too widely drafted.

Although the Government have undertaken to use the exemptions only rarely, it is important that there is a limit and that it is put on a clear statutory basis. As the Public Administration Committee argues, the Diplomatic Service deserves statutory protection as much as the rest of the Civil Service. My amendment is not original, but rather that which members of the Public Administration Committee tabled in the other place but which there was no time to debate. The case for that amendment also is clear and compelling.

Amendment 4 deals with promotion on merit. As the Bill is drafted, only appointments to the Civil Service are covered by its provisions. Clause 10(2) provides that the person's selection must be on merit on the basis of fair and open competition. There is no requirement in the Bill for promotion within the Civil Service to be on merit. The amendment seeks to rectify this by including such a requirement. The new clause requires promotion within the Civil Service to be on merit, with the Civil Service Commission's involvement in promotions to the 200 most senior posts. The commission has to give approval for promotion to a post within this category and may participate in the process for promotion.

The need for such an amendment has been recognised by the Public Administration Committee in the other place. It has been recognised also by the Civil Service Commissioner, who wrote to the Public Administration Committee, stating:

"It is a generally accepted principle that civil servants are not only appointed on merit, but are also promoted on merit. As you know the Commission believe that Civil Service legislation offers the opportunity to enshrine this principle in statute, and to provide for regulatory oversight of its application".

My amendment gives effect to that.

I turn finally and briefly to Amendment 5, addressing the issue of special advisers and how many may be appointed. I begin by acknowledging the value of special advisers-indeed, a number of my graduates have served as special advisers. They have a particular and valuable role to play. The problem in recent years has been that some have become too much part of the public face rather than the unseen face of government.

The provisions of the Bill in respect of special advisers are welcome, but they fail to place a limit on the number that may be appointed. I recognise that there are arguments on both sides. If one stipulates a maximum number that may be appointed by a Minister, that number becomes the norm. Against that, there is clear concern about the growth in the number of special advisers, especially political special advisers as distinct from expert advisers. There is a case for placing some limit on the numbers, both for political and financial reasons.

My new clause provides that the number of special advisers to be appointed by any one Minister be limited to two. That is a reasonable number in terms of ministerial needs and the burden on the public purse. However, I appreciate that there may be exceptional circumstances, in the case of a Minister with particular disabilities, for example, or of a Minister with a particularly wide range of responsibilities. The clause allows that, in such exceptional circumstances, the Prime Minister may authorise additional special advisers. He may also do so where a Minister wishes to appoint a policy expert rather than a political adviser. The new clause thus strikes the right balance. It is designed to impose a useful discipline, but not to act as a straitjacket.

I join others in paying tribute to the Minister on the progress that we have made on the Bill. I offer the amendments as a way of improving this section of the Bill, which I think we all recognise is extremely important. I beg to move.

Photo of The Earl of Onslow The Earl of Onslow Conservative 12:15 am, 7th April 2010

My Lords, I shall be extremely brief, since we are debating 163 amendments at half past twelve in the morning. I put my name to these amendments because the noble Lord, Lord Norton of Louth, is a wise man and because they sum up to me my idea of what the Civil Service should be. Amendment 1 personifies what Northcote Parkinson says-sorry, I mean the Northcote-Trevelyan rules, although Parkinson's law has entered into this quite a lot. It helps to maintain the culture of what is behind the amendments.

On Amendment 2, it is surely reasonable that you should not have to wait for a complaint to investigate something if you know that it is reasonable. That, I think, is a reasonable point to make. On Amendment 3, the noble Lord is right: the number of Lord Halifaxes in America or Paul Boatengs in South Africa should be limited to two. I must admit that I thought that promotion on merit was automatic and axiomatic. It was Macaulay, I think, who introduced a whole system copying the exams for the Indian Civil Service from the Chinese mandarinate. There is value in the points made about special advisers, but I know that there are slight difficulties in the words "any one Minister" and various things like that, so perhaps the amendment will not be accepted in full. I have put my name to these amendments and I have tried to be as brief as possible. I shall now sit down.

Photo of Lord Armstrong of Ilminster Lord Armstrong of Ilminster Crossbench

My Lords, perhaps it would be convenient if I also spoke to the five amendments. I do not want to comment on Amendment 1. I should have been prepared to go along with the proposals dealt with in Amendment 2 and the investigations into the code of conduct by the commission if the consent of the Minister had been required for the exercise of such an investigation. Without that, I do not think that I favour it; I could not support that amendment.

Amendment 3 would limit to three the number of people who can be appointed otherwise than on merit in senior diplomatic service appointments. I support that amendment and would be happy to see it passed. On Amendment 4, it is of course already the principle that promotion in the Civil Service is on merit, but I do not think that it should be made statutory. Promotion differs from appointment in that it is very much a management matter and, although it should be on merit, there will be cases when that has to be qualified. There are such things as horses for courses, and it may well be that a candidate for promotion to a particular appointment is not suited to that appointment-it would not suit him or he would not suit the appointment. Management must be free to take that into account. If these proposals on promotion on merit are put into statute, there will be a raft or flood of appeals on promotions, which would hold up the process of promotion and make management a great deal more difficult. I could speak at greater length about it, but I cannot support Amendment 4 and I hope that the House will not accept it.

Amendment 5 deals with the number of special advisers. As the noble Lord, Lord Norton of Louth, has suggested, the danger of fixing the maximum of two per Minister is that everybody will go up to the maximum. I am conscious of that danger, but it makes sense to have a limit on the number of special advisers. I should myself have settled for one, with the safeguard that the noble Lord, Lord Norton of Louth, has proposed for the Prime Minister to have discretion to go above that in particular cases, but I would not object to Amendment 5 if the House were minded to accept it.

Photo of Lord Tyler Lord Tyler Spokesperson for Environment, Food and Rural Affairs and Constitutional Affairs 12:30 am, 7th April 2010

As one who served with the noble Lords, Lord Armstrong and Lord Norton, on the Joint Committee on the draft Bill-which, it is perhaps appropriate to remind your Lordships, reported in July 2008; there has been a long period during which its conclusions could have been acted upon by the Government-I want particularly to say a word about Amendment 5, with which I have a great deal of sympathy. The Minister may recall that the Joint Committee exercised considerable concern on the issue of special advisers, and I think that that concern remains in many parts of your Lordships' House.

I am not sure whether the amendment proposed by the noble Lord, Lord Norton, meets all of the Joint Committee's anxieties, but I ask the Minister to take very seriously the concerns that have been expressed this evening on the issue. It may not be that this amendment precisely meets all of those concerns, but somehow or other the way in which special advisers are appointed and their number-which has grown so dramatically in recent years, not least of course in No. 10-is a matter of considerable public as well as parliamentary concern. I hope that the Minister will address that point.

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

My Lords, I thank the noble Lord, Lord Norton of Louth, for moving the amendment. I also thank him for the part that he played in this afternoon's discussions. I shall deal with the amendments as briefly as I can. On Amendment 1, we agree that it is very important that,

"civil servants who advise Ministers are aware of the constitutional significance of Parliament and of the conventions", that govern,

"the relationship between Parliament and Her Majesty's Government".

In short, we accept the amendment. I am grateful to the noble Lord for moving it.

I am afraid that I cannot be quite as helpful about the other amendments. Where Amendment 2 is concerned, we have considered this carefully in the light of evidence in pre-legislative hearings on the draft Bill, and the recommendations of both the Public Administration Select Committee and the Joint Committee on the draft Bill. We also noted the Joint Committee's view that the proposal should not place any additional undue pressure on the resources of the commission or risk politicising its role. We are concerned, as the Government, that such a provision would risk the commissioners being diverted by politically motivated or vexatious correspondence, which would, in turn, have resource implications about which the commissioners themselves had voiced concerns, as well as the potential for politicisation.

Civil servants can already take complaints or concerns directly to the Civil Service Commissioners, who can then investigate and make recommendations. I emphasise that this will continue under the provisions. The commissioners can also approach the Cabinet Secretary with complaints or concerns raised from other sources. The Cabinet Secretary has always taken seriously any approach from the commissioners if there is a concern which needs investigating. I am advised that the commissioners feel no restraint under the legislation about raising concerns with the Cabinet Secretary. Under the Bill, the Minister for the Civil Service and the commission would be able to agree that the commission should carry out additional functions in relation to the Civil Service.

It is also the case that the commission has undertaken an audit of departments in handling complaints under the Civil Service Code. I can tell the Committee that a further audit is planned for April 2011. In the light of that work, the Government, in consultation with the commissioners, will consider whether further amendments will be required to legislation.

Amendment 3 relates to the exceptional circumstances as far as the Diplomatic Service is concerned for heads of mission. It would require the Secretary of State to inform the Civil Service Commission of an intention to use the exception to fair and open competition to appoint an individual to the Diplomatic Service as head of mission or governor of an overseas territory. It would also limit to three the number of individual appointments to such posts at any one time. The Joint Committee on the draft Bill recommended that this exception should be limited to exceptional circumstances and should require the direct approval of the Prime Minister. The committee said:

"If the Prime Minister wishes to make political appointments to senior diplomatic posts in exceptional cases, he should be able to do so, but he must be politically accountable for any such decisions".

As the Committee knows, this exception has only ever been used very sparingly. It will continue to be used only on an exceptional basis and to require the direct approval of the Prime Minister. The Government also commit to making any such appointments public. I hope the fact that I have said those words in Committee today will be some comfort to the noble Lord when I tell him that I am afraid we cannot accept his amendment. We do not think it is necessary in these circumstances.

Amendment 4 in the noble Lord's name deals with promotion in the Civil Service. These amendments would put promotion within the Civil Service on the same footing as recruitment into the Civil Service, with promotions regulated by the Civil Service Commission. As the noble Lord, Lord Armstrong, reminded us a moment ago, the principle of promotion on merit is a mandatory requirement, set out in the Civil Service Management Code, which forms part of the terms and conditions of employment of all civil servants. The current role of the Civil Service Commission is to regulate recruitment into the Civil Service. At the request of the Cabinet Secretary, the commissioners are involved in moves within the top 200 appointments, including promotions. This role would continue under the legislation.

Below the most senior Civil Service posts it is important, as the noble Lord, Lord Armstrong, said, that departments are able to manage staff in the most efficient and effective way, in accordance with their business needs and the requirements set out in the Civil Service Management Code. The current framework puts a clear obligation on departments and enables the Minister for the Civil Service to develop and change the requirements as necessary. I have to tell the Committee that there is no evidence that the current arrangements are failing or that stronger regulation of the arrangements for internal promotion is necessary. Furthermore, current arrangements allow for internal management flexibilities-for example, for temporary promotion or urgent deployment, which may occasionally be required for the effective conduct of public business. So, we do not think that the case has been made for that amendment.

I turn finally to Amendment 5. I thank the noble Lord, Lord Norton of Louth, for his praise of special advisers. They are, certainly in my experience and, I know, that of other Ministers, much appreciated in the various departments in which they serve. The noble Lord's amendment would introduce a new clause, the effect of which would be to allow all Ministers, even those as lowly as me, to appoint up to two-or more with the approval of the Prime Minister-special advisers. I was immediately attracted by the amendment, but I must resist it. The Ministerial Code already makes clear that, with the exception of the Prime Minister, Cabinet Ministers and those Ministers who regularly attend Cabinet may each appoint up to two special advisers, and that all appointments require the Prime Minister's approval. The Ministerial Code does not permit all Ministers to appoint special advisers. Provisions in the Ministerial Code provide the appropriate mechanism to regulate the number of special adviser appointments. We also publish an annual report on special adviser costs and numbers and were the first Government to do so. Transparency about numbers and costs provides for accountability. The provisions in the Bill will maintain this. I ask the noble Lord not to press the amendment.

Photo of Lord Norton of Louth Lord Norton of Louth Conservative

My Lords, I am very grateful for the Minister's response to the amendments, particularly for his response to Amendment 1. That is the most important amendment in the group because of the duty it imposes on the Minister for the Civil Service and the impact it may have on the Civil Service in relation to Parliament. From the point of view of Parliament itself, it is an extremely important amendment. I am therefore extremely grateful to the Minister for accepting it.

I take some of the points that have been made and I am grateful to noble Lords who have contributed to the debate, not least the noble Lord, Lord Armstrong of Ilminster, my former university chancellor. I am also grateful to some of his successors who have been in touch with me prior to the debate. I am grateful for the Minister's responses. I make two points in terms of my gratitude: one is what is placed on the record in response to some of the amendments. The other point touches on what the noble Lord, Lord Rooker, said earlier, that there will be an opportunity to come back to some of the points embodied in the amendments. Although there are drafting issues, some of the central points of what the amendments are getting at are important and worth coming back to. Indeed, from what the noble Lord, Lord Armstrong, was saying, I suspect that one of the amendments may prove acceptable to him with the removal of one word-"not"-in relation to that amendment. There will be an opportunity to review some of these issues in the way that the Minister has touched on. I am grateful for that response and content with what he has said. In the light of his acceptance of Amendment 1, I beg to move.

Photo of Earl Ferrers Earl Ferrers Conservative

My Lords, before my noble friend withdraws his amendment-

Photo of Baroness Hayman Baroness Hayman Lord Speaker

If the noble Earl will forgive me, it may assist the Committee if I say that the noble Lord, Lord Norton, has moved his amendment. As I understood it, the Government signified that they were going to accept it. However, I do not want to interrupt the noble Earl.

Amendment 1 agreed.

Clause 3, as amended, agreed.

Clauses 4 to 9 agreed.

Amendment 2 not moved.

Clause 10 : Selections for appointments to the civil service

Amendment 3 not moved.

Clause 10 agreed.

Clauses 11 to 14 agreed.

Amendment 4 not moved.

Clause 15 agreed.

Amendment 5 not moved.

Clause 16 agreed.

Clause 17 : Agreements for the Commission to carry out additional functions

Amendment 6 not moved.

Clause 17 agreed.

Clauses 18 and 19 agreed.

Schedule 2 agreed.

Debate on whether Clause 20 should stand part of the Bill.

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

I argue that Clauses 20, 21, 22 and 23 should not stand part of the Bill. We think that for appropriate reasons this part of the Bill should not be pursued this evening.

Clauses 20 disagreed.

Clauses 21 to 23 disagreed.

Schedule 3 disagreed.

Clause 24 : Treaties to be laid before Parliament before ratification

Amendment 7 not moved.

Clause 24 agreed.

Clause 25 : Extension of 21 sitting day period

Amendment 8

Moved by Lord Norton of Louth

8: Clause 25, page 14, line 24, at end insert-

"( ) The Minister shall normally exercise the power under subsection (1) except in the case of treaties that he deems to be minor, technical or incremental adjustments to existing treaties to which the United Kingdom is a signatory."

Photo of Lord Norton of Louth Lord Norton of Louth Conservative 12:45 am, 7th April 2010

My Lords, I shall speak also to Amendments 9 and 10, also in my name, relating to the parts of the Bill dealing with treaties.

On the amendment, I recognise the importance of transferring the power to ratify treaties to Parliament. It is not restoring power to Parliament. It is giving a power to Parliament that it has not had before. I welcome the transfer. However, one of the issues is to give effect to the transfer in meaningful terms. There is no point giving a power to ratify treaties if Parliament lacks the time and resources to examine a treaty in some detail. This is a point that I made to the Lord Chancellor, Jack Straw, when he appeared before the Joint Committee on the Draft Constitutional Renewal Bill.

We need to create the resources, not least through the establishment of a Joint Committee on treaties. If the Commons is not interested in creating such a committee, then we need to set up a Lords committee. That is a matter for us. However, for that committee to do its job requires time. For a substantial treaty, that will normally mean more than 21 days from when the Minister lays the treaty before Parliament. In such cases, the power to extend the period should be employed.

My amendment is designed to ensure that treaties get the extra time, unless the Minister deems the treaty to be minor, technical or incremental adjustments to existing treaties to which the United Kingdom is a signatory. Many treaties will fall into those categories. I believe that some 30 or so treaties are ratified each year. I suspect that most fall into these categories. I do not think that many will cause problems in terms of being classified in the way that I have suggested. This will be clear to the Minister's advisers as well as to the members of a committee on treaties.

This amendment is therefore designed to ensure that treaties receive sufficient time, depending on their significance. I believe that it helps firm up the intention behind this part of the Bill. It is one half of the solution. The other half is in the gift of Parliament in creating a Joint Committee.

Amendment 9 is fairly self-explanatory. Clause 26 provides that Clause 24 does not apply if a Minister of the Crown is of the opinion that, exceptionally, the treaty should be ratified without the requirements of that clause having been met. It stipulates what steps the Minister has to take as soon as is practical after the treaty has been ratified. My amendment is to ensure that before exercising his power, the Minister has to make every reasonable effort to consult the chairman of the Foreign Affairs Committee of the House of Commons and the chairmen of such other committees of either House or Joint Committees that he considers appropriate.

Amendment 9 is drafted in such a way that if a Minister cannot track down the chairman of the Foreign Affairs Committee or chairmen of other committees that does not prevent him going ahead with ratification. The amendment creates no bar. What it imposes is an obligation on the Minister to make every effort to consult within the limited time available. That is a sensible way to proceed. The amendment enables the Minister to alert the chairman of the Foreign Affairs Committee and other chairmen of the importance of the treaty and the need for ratification under subsection (1), and to get a response. It is up to the Minister as to what account he takes of the response he receives.

I regard this as a common-sense provision which imposes a duty on a Minister without tying his hands when the need to seek ratification is urgent.

On Amendment 10, it is normal practice for an Explanatory Memorandum to accompany a treaty. I would argue that that is best practice. Given that the power to approve ratification is being given to Parliament, it is essential that such a memorandum should accompany each Bill.

I appreciate that Clause 24 provides-as does Clause 26-that a treaty may be ratified if a Minister makes a Statement to Parliament indicating that they are of the opinion that the treaty should nevertheless be ratified, and explaining why. However, the Bill should stipulate that there should be something more than a Statement, which may be little more than a formal explanation. When the Commons rejects one of our amendments, it has to give reasons. Those reasons are not necessarily enlightening. My amendment provides that an Explanatory Memorandum must accompany a treaty, explaining the provisions of the treaty, the reasons for the Government seeking ratification and such other matters as the Minister considers appropriate. It is not an onerous requirement, but if Parliament is to do its job effectively, it is a necessary one. It imposes an important discipline and takes us beyond the wording of Clauses 24 and 26. I beg to move.

Photo of Lord Tunnicliffe Lord Tunnicliffe Government Whip, Government Whip

My Lords, I will speak also to Amendments 9 and 10. We have listened to the persuasive arguments of the noble Lord, Lord Norton. I hope my words on Amendments 8 and 9 will be of comfort and that he will not press them. The Government are content to accept Amendment 10.

The Government have consulted widely for nearly three years on the proposals to enhance parliamentary scrutiny of treaties. Following a public consultation on the subject, clauses included in the draft Constitutional Renewal Bill were considered in detail by the Joint Committee established for pre-legislative scrutiny, of which the noble Lord, Lord Norton of Louth, was a member. While the Government added Clause 25 to the Bill in response to the Joint Committee's recommendation that there should be a mechanism for considering requests to increase the period available for scrutiny beyond 21 days, the committee's report agreed with the Government that,

"a 21-day sitting period will be sufficient time for Parliamentary scrutiny of treaties in the vast majority of cases".

The noble Lord's amendment seeks to amend Clause 25, which describes the mechanism for extending the period of scrutiny and provides that the Minister shall normally use that mechanism except in cases where he deems the treaty to be a minor or technical amendment to existing agreements. The amendment would create a presumption that the scrutiny period for treaties will be longer than 21 days, rather than that the extended period will be the exception.

It is current practice under the Ponsonby rule to extend the sitting-day period whenever possible where a request is made through the established channels or by a Select Committee for more time to scrutinise a treaty. In fact, requests for extension are not the norm. This point was recognised by the Joint Committee when it concluded that 21 days would be sufficient in the vast majority of cases. As is evident from the addition of Clause 25 to the Bill in response to the pre-legislative scrutiny undertaken, the Government stand by their previous commitments. I see no sound case for amending the Bill to make extending the scrutiny period the norm. In addition, I note that the amendment is unclear on what should count as minor, technical or incremental adjustments to existing arrangements. Putting such obscure criteria into the Bill would leave the Government open to criticism, and would offer no discernible benefit beyond the Government's current proposals. For these reasons, I hope that the noble Lord will withdraw his amendment.

Clause 26 provides that, in exceptional circumstances only, the provision setting out the normal process of formal parliamentary scrutiny may be disapplied. Clause 26 also states that if exceptional procedures are invoked, the responsible Minister must lay a Statement before Parliament explaining his reasons for departing from the normal procedures. The noble Lord's amendment would require the Minister to consult the chair of the Foreign Affairs Committee and any other committee he considers appropriate before invoking exceptional circumstances. In 2000, the Procedure Committee of another place, in recommending against the setting up of a Commons sifting committee specifically to deal with treaties, stated that the appropriate role for the other place in relation to scrutiny of treaties was to draw upon the established expertise of the departmental Select Committee. It recommended that the Foreign and Commonwealth Office send every treaty subject to ratification to the relevant Select Committee along with its explanatory memorandum. The Government accepted this recommendation and it is now routine practice. In addition, in their response to the committee's report, the Government gave an undertaking to provide an opportunity for debate on any treaty involving major political, military or diplomatic issues if the relevant Select Committee and the Liaison Committee so requested.

It is clear that the Government are committed to working with whichever committee Parliament decides to establish. Nevertheless, I believe that the noble Lord's amendment ties the hands of the Executive unnecessarily. It is not simply tautologous to say that the cases in which it is envisaged that Clause 26 will be used are by their very nature exceptional; the Government need the flexibility to respond to factors outside their control or to urgent situations as they develop. This amendment would require the Government to consult the Chairman of Committees before acting in all cases, even if such a delay would adversely affect the Government's ability to secure the nation's interests. It is not for nothing that flexibility is inherent in the Ponsonby rule-albeit a flexibility which both Conservative and Labour Governments have resorted to on only a handful of occasions over the past 60 years.

The Government will naturally strive to ensure that the chairman of the Foreign Affairs Committee and relevant Select Committees are apprised of matters that concern them in a timely fashion. The Government already do so as a matter of course. Not only is this amendment unnecessary but it would apply a rigid procedure when the uncertain nature of events makes a flexible approach the only sensible one. Under the clause as it stands, there is already a safeguard in that the Minister is under a duty to explain to Parliament his reasons for departing from the norm. This is the appropriate means of dealing with these exceptional cases, and I urge the noble Lord not to press this amendment.

Finally, Amendment 10 would place in statute a requirement for every treaty laid before Parliament to be accompanied by an explanatory memorandum explaining what the treaty is about and why the Government believe it should be ratified. Under the Ponsonby rules, since 1997 the Government have consistently laid an explanatory memorandum at the same time as laying a copy of every treaty. We fully intend to continue this practice and are therefore content to place this requirement on the statute book and accept the noble Lord's amendment.

Photo of Lord Norton of Louth Lord Norton of Louth Conservative

We worked up to the good news. Perhaps I may run through the three amendments. Amendment 8 was designed to change the onus, so in effect it would not make much difference. I think it is important that the onus is placed there but I hear what the noble Lord says.

On Amendment 9, I do not particularly agree with what the noble Lord has argued because the amendment would not place a rigid requirement to consult; it would require the Minister to make every effort to get in touch with and consult the chairman of the Foreign Affairs Committee and other relevant committees. Therefore, it would not necessarily impose a limit on the Minister by preventing him going ahead, as the noble Lord suggested it would. I think he said that in normal circumstances the Minister would make such an effort. I think it is quite valuable to have that duty imposed on the Minister, but it is a duty to make the effort to get in touch and to make every reasonable effort; it is not a rigid imposition. Therefore, a failure to make contact would not bar the Minister from proceeding in the way indicated in the clause. That may be something that we want to look at again in the future.

On Amendment 10, I am extremely grateful for the Minister's response. Given the changes that have been made, I think it is useful to have such a provision in the Bill because it sets out a clear duty. If the House is going to have to consider treaties in order to ratify them, it will be helpful to have the sort of information that is extremely useful for that purpose.

In the light of that, and having heard what the Minister has said, we may want to come back to some of the issues but I am grateful for his acceptance of Amendment 10 and beg leave to withdraw Amendment 8.

Amendment 8 withdrawn.

Clause 25 agreed.

Clause 26 : Section 24 not to apply in exceptional cases

Amendment 9 not moved.

Clause 26 agreed.

Clause 27 agreed.

Amendment 10

Moved by Lord Norton of Louth

10: After Clause 27, insert the following new Clause-

"Explanatory memoranda

In laying a treaty before Parliament under this Part, a Minister shall accompany the treaty with an explanatory memorandum explaining the provisions of the treaty, the reasons for Her Majesty's Government seeking ratification of the treaty, and such other matters as the Minister considers appropriate."

Amendment 10 agreed.

Clause 28 agreed.

Photo of Lord Geddes Lord Geddes Conservative

My Lords, I am advised by the government Front Bench that its intention is to oppose the Question that Clauses 29 to 37 en bloc do not stand part of the Bill; namely, the whole of Part 3 will be removed. Therefore, it may be for the convenience of the Committee if noble Lords do not wish to move their amendments. Of course, it is always open to any noble Lord to move an amendment standing in his or her name.

Clause 29 : Referendum on voting systems

Amendment 11 not moved.

Amendment 12

Tabled by Lord Tyler

12: Clause 29, page 15, line 40, leave out "31 October" and insert "30 May"

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

My Lords, I do not intend to move Amendments 12, 13, 14, 16, 18, 19 and 20, but I and my noble friend Lord McNally wish to speak briefly to Clause 29 stand part, which is part of this group.

We were enormously impressed by the sagacity, eloquence and persuasive skills of the Lord Chancellor and Secretary of State for Justice in not only changing his mind on the whole issue of electoral reform, but in persuading so many of his colleagues in the other place, that it achieved the highest majority for a matter of any substance in this Parliament.

I would be remiss if I did not reiterate the point made by the noble Lord, Lord Campbell-Savours, which has been made on a number of occasions in this House. That is a matter for the other place and we agree that it may well be sensible not to press for this section, at this stage, at this time of night, to be the subject of lengthy discussion in this House. However, we will look with great interest to see how persuasive the "un-noble" Lord Chancellor and Secretary of State for Justice will be able, with his usual eloquence and persuasive skills, to persuade the other place to do an amazing u-turn. Having so eloquently persuaded them in one direction, no doubt he will be equally persuasive in presenting the case for doing a major u-turn. We would have been quite happy to push this through, even at this stage, but we recognise that at this time of night that is not likely to be the case.

However, this again emphasises to this House how we have been treated on this Bill in this wash-up. Here is a very important proposal which was thought through very carefully, as we understand it, in the other place, and now the Government are retreating so fast and furiously simply because this does not meet the party political interests of the Conservatives. It is so extraordinary. This provision does not introduce any change to our constitution; it was simply to ask the public whether they thought it was appropriate to consider a change to our electoral arrangements. That principle was so persuasively argued by the Lord Chancellor in the other place. We are disappointed that it has proved impossible in this House, at this stage, to maintain that position.

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

My Lords, I hear clearly what the noble Lord, Lord Tyler, says. We understand and share his disappointment. We are committed to a referendum on AV-watch this space-but we are also committed to trying to get an important Bill through Parliament and, being realistic, this is the way to do it.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

Did the Lord Chancellor ever seriously believe that this would end up other than being knocked out in the wash-up?

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

I do not know the answer to that, but I think that there was every possibility that the party opposite would on this matter see sense.

Photo of Earl Ferrers Earl Ferrers Conservative

The noble Lord has said that this will be removed from the Bill. I congratulate him on doing that. After all, this is a constitutional Bill, and the altering of the constitution is a great and impressive thing to do. It requires more time than just wash-up. It is derisory to think that a major change to the constitution could come about as a result of an agreement in a wash-up. The fact that the Liberal Democrats always want an alternative voting system is like a mania. They always want it, irrespective of the arguments. The fact is that most people, other than the Liberal Democrats, do not understand how it works and do not realise that there are 12 alternative systems and each of the 12 provides a different answer. You cannot just say, "Let's have an alternative voting system", because it depends on which one you choose, and on which one you choose depends on the result of the vote. I am thrilled that the Government have at least seen sense over this.

Photo of Lord Elton Lord Elton Conservative

On a procedural matter, one cannot speak in this House unless one speaks to a Motion. The Motion is that the amendment be agreed to, so it requires to be withdrawn when we get to the end of our discussion.

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

My Lords, perhaps I may say how thrilled I am that I have thrilled the noble Earl. I have to agree with him that this is a matter that needed considerable discussion-I will go that far with him-but I do not want anyone to be under any misunderstanding: the Government party is committed to a referendum on alternative voting.

Photo of Lord Lucas Lord Lucas Conservative

My Lords, is that like the last commitment that we had to a referendum from the Government, or it is a different kind of commitment?

Amendment 12 not moved.

Amendments 12 to 20 not moved.

Clause 29 disagreed.

Clauses 30 and 31 disagreed.

Clause 32: Role of Electoral Commission

Amendment 21 not moved.

Clause 32 disagreed.

Clauses 33 to 37 disagreed.

Clause 38 agreed.

Schedule 4 agreed.

Clauses 39 to 46 agreed.

Schedule 5: Parliamentary Standards Act 2009: new Schedule 4

Amendment 22

Moved by Lord Bach

22: Schedule 5, page 79, line 19, leave out "each House of Parliament" and insert "the House of Commons"

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

My Lords, with the leave of the Committee, I shall speak also to Amendments 23 to 26. I can be very brief with this group of amendments. They give effect to the conclusions and recommendations made in respect of Part 4 by the Delegated Powers and Regulatory Reform Committee. The committee's report speaks for itself. Unless any noble Lord wants further details, if the Committee will allow me, I will leave it at that. I beg to move.

Amendment 22 agreed.

Schedule 5, as amended, agreed.

Clauses 47 to 50 agreed.

Schedule 6 : Parliamentary standards: consequential amendments

Amendments 23 and 24

Moved by Lord Bach

23: Schedule 6, page 81, leave out paragraph (b)

24: Schedule 6, page 81, line 21, leave out from "8(2)"" to end of line 23

Amendments 23 and 24 agreed.

Schedule 6, as amended, agreed.

Clauses 51 and 52 agreed.

Schedule 7 : Parliamentary and other pensions

Amendments 25 and 26

Moved by Lord Bach

25: Schedule 7, page 91, line 37, leave out "the House of Commons" and insert "each House of Parliament"

26: Schedule 7, page 93, line 18, at end insert "(subject to sub-paragraph (5)).

(5) A statutory instrument containing an order made under this paragraph in consequence only of a scheme under paragraph 12 is subject to annulment in pursuance of a resolution of the House of Commons."

Amendments 25 and 26 agreed.

Schedule 7, as amended, agreed.

Amendment 27 not moved.

Clause 53 : Ending of by-elections for hereditary peers

Amendments 28 and 29 not moved.

Debate on whether Clause 53 should stand part of the Bill.

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

My Lords, as the noble Lord, Lord Bach, generously said at the beginning of our proceedings on the Bill this evening, my noble friends and I did not agree to the complete exclusion of Part 5, which relates to matters of considerable concern to this House and to issues on which this House has taken a view on innumerable occasions in recent years, not least when we were discussing the Bill brought forward by my noble friend Lord Steel of Aikwood, which was supported by many Members on other Benches in your Lordships' House.

Clause 53 deals with the ending of by-elections for hereditary Peers, but also within this group we have Clauses 54 and 55, which deal with the extremely important issues of the exclusion and suspension of Members, which, as many Members of your Lordships' House will recall, caused us considerable concern in recent months when we found that the powers that we had on those matters were not substantial and were not sufficiently up to date in many people's view. We also have Clauses 57 and 58, which are tidying-up matters, and Schedule 8.

At this hour, I do not propose to repeat the arguments that we have advanced previously, not least earlier yesterday-I suppose about nine hours ago-on the issue of the extended discussions that have taken place over a long period about the hereditary principle and what the noble Lord, Lord Bach, as recently as in the Second Reading debate, described as the farce of the hereditary by-elections. We believe that it does this House no good to perpetuate farce of that nature. We believe that the Government were absolutely right to tackle this issue in this Bill and to pick up the proposals put forward so persuasively over many months by my noble friend Lord Steel of Aikwood. Therefore, we are disappointed that, under pressure from the Conservatives, who seem to think that preserving the hereditary principle is the big issue of the wash-up, the Government have given way on this issue of principle. We imagine that Members of the other place will be equally disappointed when this Bill goes back to them if the Government's proposals go through. On that issue, we are resolute.

However, we also believe that Clauses 54, 55, 57 and 58 have the real merit of simplifying and clarifying what powers we have in this House to deal with the problems that have been so apparent over recent months. This is, if you like, the IPSA problem so far as this House is concerned. The IPSA provisions in this Bill will go through and no doubt will give some confidence-at least, one would hope so-and increased trust in the way in which the other place deals with its disciplinary procedures. However, unless we have Clauses 54 and 55 in particular in this Bill, this will be unfinished business and we will go into the election and into the new Parliament with the House of Lords not having cleaned up its act. There is a real issue of principle, as well as of trust and of confidence in the parliamentary process and in your Lordships' House in particular.

That is enough at this time of night. We will definitely wish to test the opinion of the House on Clause 53 when the appropriate moment arrives.

Photo of Lord Steel of Aikwood Lord Steel of Aikwood Liberal Democrat 1:15 am, 7th April 2010

Before we do that, I register again my acute disappointment that, after three years of debate on what I call running repairs in this House on the four issues, the Government picked up three of those issues in this Bill but, at the last minute, we are not going to get even those. I can say straightaway that the noble Lord, Lord Norton of Louth, and I did not intend to move the amendment on a statutory Appointments Commission, despite the fact that it received universal support at Second Reading, for the simple reason that, although we would have done so had this Bill gone through the normal Committee procedure, we believe that it is not right at this late stage to try to introduce a new measure into the wash-up.

It really is quite extraordinary that we are going to make no progress on the other three issues tonight. I think that I understood the noble Lord, Lord Strathclyde, to say that, if a Conservative Government were elected, they would proceed with the disciplinary measures. If I understood him correctly, it is a pity that he does not go further and embrace all three measures. The retirement provision is surely important for the working of this House. We know that, after the election is over, there will be an influx of new Peers in all parts of the House. We will reach something like 800 if we are not careful. Yet it is seriously suggested that we do not even start to allow a provision for Members to retire from the House when they feel that it is right to do so. That is quite extraordinary.

As for the provision on hereditary by-elections, I remind the House of what the then Lord Chancellor, the noble and learned Lord, Lord Falconer of Thoroton, said in the House in 2003:

"It was never our intention that the remaining hereditary Peers should remain Members of the House for ever. When this interim arrangement was reached, as well as the immediate benefit of the agreement, we accepted the argument that the presence of the remaining hereditary Peers would act as an incentive to further reform. That has not happened ... So the context for reform has clearly and significantly changed. The circumstances which gave rise to the original arrangement over the remaining hereditary Peers no longer apply".-[Hansard, 18/9/03; col. 1058.]

If that was the position of those on the government Front Bench in 2003, how can it still apply in 2010? It simply does not make sense. If the Government are saying, "Oh well, we have to agree because the Conservative Opposition do not like this provision", I remind them that it was perfectly clear in all our debates that those on the Conservative Front Bench did not carry all those on their Back Benches with them. Not only are they giving in to a minority, but they are giving in to a minority within a minority in seeking to remove this provision from the Bill. It is deeply sad that this is happening. I will say simply that, if these provisions are not brought back before the House when the election is over, I intend to reintroduce my Bill for the third time.

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour

My Lords, it is deeply regrettable that the opportunity has not been taken to pursue these modest measures that the noble Lord, Lord Steel, has so helpfully tabled on a number of occasions for your Lordships' consideration. Today, my right honourable friend the Prime Minister said to the country that it would be the intention of a future Labour Government to reform the House of Lords root and branch and that there should be an elected second Chamber. He has also made it clear that, following the removal of the hereditary principle, the introduction of an elected Chamber should take place by stages and that at least a further two general elections following the one about to take place would need to have occurred before that transition was complete. On the other hand, Mr Cameron has said that reform of the House of Lords would be a matter for a third term of a Conservative Government.

On any basis, we will continue with an appointed House for a considerable number of years to come. It is therefore important to realise that what the noble Lord, Lord Steel, has termed as running repairs, but which are significant reforms, are necessary to make an appointed House respectable and effective in the way that surely all of us desire that it should be. That must be in the interests of Parliament and the Government of this country. It really matters that these changes should be introduced.

It is pretty cynical to decline to implement reforms that have been extensively debated and clearly make sense in the context of an appointed House in order to present the appointed House as somehow disreputable. I do not think that that is a proper way to treat this House of Parliament. It is a great shame and greatly to be deplored that the Government have decided not to act on what they had previously intended to do, for which, I believe, they would have had extensive support across the House, with a real possibility of achieving these changes.

Photo of Earl Ferrers Earl Ferrers Conservative

My Lords, it is a particular pleasure to support the Government yet again, because they have been sensible over this. We have really got to get this thing right. A lot of absurd arguments have been put forward on one side. The noble Lord, Lord Steel, has said, "After all, I put this thing forward once, twice, three times and why should it not be made law?". That is his bad luck. The law of the country is not just changed; you do not change the constitution because one person happens to be fairly persuasive and obdurate about it.

It would have been a great mistake if the Government had undertaken a huge change-let us make no mistake, it is a huge change-in the wash-up. These things take a tremendous amount of care and thought before great decisions are arrived at. It is all very fine for the noble Lord, Lord Howarth of Newport, to say that he thinks that the whole thing is a farce. What makes a hereditary Peer any worse than he is? He was only appointed by someone. He scratched someone's back and someone said, "All right, I will appoint you". Hereditary Peers have not been appointed by anyone other than the Almighty. The noble Lord cannot just go around saying, "I have been appointed, so I am going to wash everyone else out of the system". The presence of the hereditary Peers-I say this with a great deal of modesty and I exclude myself-does a great deal of good. That is because their presence retains the House of Lords as it is. Once you get rid of the hereditary Peers, it will be a free-for-all. Someone may say, "There are no hereditary Peers. Let us have them all elected".

Noble Lords:

Oh!

Photo of Earl Ferrers Earl Ferrers Conservative

There you go. I cannot think why the Liberal Democrats cannot keep their mouths shut for half a minute. They want it all to be elected. They do not realise that the House of Commons will hate it or that there will be terrible antagonism between the Lords and the Commons, with the Lords saying, "We have now been elected. O House of Commons, we have got just as much right as you have". We have heard that the House of Commons will not give up one jot or tittle of its power, which is quite understandable. Who will want to be elected here to have no purpose or raison d'être?

The Liberal Democrats have got this mad feeling that you have to change everything. With the greatest of respect, I would ask them to leave something alone for a minute. One of the things that they can leave alone is your Lordships' House. At least the Government have had the sense to think that this is not the right kind of thing to do in a wash-up and I congratulate them on that. I suggest to them that they go on thinking in that way.

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

Let me be brief in my response. On Clause 53 and the appointment of hereditary Peers, I should make it absolutely clear that we want to end the farce of hereditary by-elections as soon as possible, but the question is at what price. If we had insisted on that clause in this wash-up period, the price would have been no Bill, which it is hoped there will be by the end of tonight, and there may well have been no other Bills that the Government wanted to get through in the last few days of this Parliament. So one has to make a choice.

There is also an argument in relation to what can and cannot be debated at length in the wash-up. The noble Earl has a point there. But let there be no doubt about the fact that we are against the hereditary principle, and when we are re-elected, we will make sure that the hereditary principle goes.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

My Lords, what conceivable opposition could there be to giving Peers rights of resignation and disclaimer?

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

Moving on to the other elements in Part 5, which are all a bit different from the one I have just talked about, again we had to make a judgment given the very limited time we have to get through some of the important parts of this Bill: Part 1 on the Civil Service; Part 2 on treaties and other parts, including one that is of particular concern to Members of this House in relation to their status; and we also need to get through the IPSA clauses. We had to make a judgment, and the judgment we have made is that it is best, for the moment at least, not to continue with Part 5. If we were to continue with it, the legitimate discussions that would have taken place, even though they would have found a pretty broad consensus around the House, would inevitably have taken longer than we have got in order to get the Bill to another place.

I do not say that this is an ideal state of affairs for Her Majesty's Government, but we are being realistic in the circumstances.

Photo of Lord McNally Lord McNally Leader in the House of Lords, Spokesperson for Constitutional Affairs , Liberal Democrat Leader in the House of Lords

I agree fully that the Minister is being realistic in the circumstances, but this House, including some Members on his own Back Benches, deserves an explanation from the Leader of the Opposition about why it has held a gun to the head of the Government on Clauses 54 and 55. We understand that the Opposition want to go into this election defending the hereditary principle, and good luck to them on that, but why on earth do they want to keep out of this Bill measures that are essential to the good reputation of this House? I just do not understand. Rather than be the fall guy for the noble Lord, Lord Strathclyde, I think that he owes this House an explanation of why he does not want Clauses 54 and 55 in the Bill.

Photo of Earl Ferrers Earl Ferrers Conservative

Perhaps I may help.

Photo of Lord McNally Lord McNally Leader in the House of Lords, Spokesperson for Constitutional Affairs , Liberal Democrat Leader in the House of Lords

I really do not want the noble Earl, Lord Ferrers, who clearly has not read the Conservative slogan for change. It is going to come as a great shock to him; indeed, it could almost be fatal when he sees the first posters. The noble Earl is no longer speaking for the Official Opposition, which is stopping these two clauses being included in the Bill.

I will say this about the noble Earl, Lord Ferrers. Just when I am getting really sleepy and thinking, "It's about time we pack it in", he intervenes and the old adrenaline comes in, so I think we could well go on until dawn.

Photo of Earl Ferrers Earl Ferrers Conservative

I was only going to try to help my noble friend Lord Strathclyde because I thought that he and the noble Lord, Lord McNally, might like to know why we do not want the clauses. The answer is that there is not enough time. You cannot alter the constitution in a wash-up rather like doing the washing up in the sink. You are changing the constitution. With the greatest of respect to him, the noble Lord, Lord McNally, does not seem to understand that if you alter this, you will alter the whole philosophy of the House of Lords. People in the House of Lords will become elected and people in the House of Commons will hate a second elected Chamber. We have to decide that slowly and carefully, not in the three minutes of a wash-up. I hope that the noble Lord, Lord McNally, who, after all, is an enormously intelligent person, will be able to see that.

Noble Lords:

Stoddart!

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

I had not intended to speak in this debate, but I really must congratulate the Government on their wisdom in accepting that these clauses should not go through today. I am surprised, in fact, that the Liberal Benches, having argued previously that there has not been time to discuss other matters such as the referendum on AV, should even be contemplating passing these clauses, which are fundamental to the House of Lords and require a few days' discussion, in the wash-up.

I say frankly to the noble Lord, Lord McNally, that it was nothing to do with the Leader of the Opposition that these clauses were dropped. The Government saw the amendments on the Order Paper and realised that there was a huge danger that they would not get any of their Bill. Make no mistake: all those amendments were going to be discussed and voted upon. It is no good blaming the noble Lord for that; instead, the Liberal Benches should be congratulating the Government on their wisdom in getting most of the Bill through.

Photo of Lord McNally Lord McNally Leader in the House of Lords, Spokesperson for Constitutional Affairs , Liberal Democrat Leader in the House of Lords

My Lords, last year we had to dig back for a 300 year-old precedent to try to deal with four Members of this House accused of a very serious offence. These amendments are trying to clean up the procedures of this House. They have been well discussed, and they are parallel to the Commons measures that we have just nodded through. When this Bill goes through, which I hope it will, the message to the country will be that the House of Commons has put its house in order but the House of Lords has not.

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

More than that, my Lords, it is not fair to suggest that we are pushing this through in the wash-up. We have had debates on ending the hereditary by-elections three or four times in this House, and that was carried by a huge majority in the other place after a long debate. The issue has been fully debated.

I say to the noble Lord, Lord Strathclyde, who is not rising from his place in response to my noble friend, that I now feel sorry for David Cameron. Here he is, about to enter an election campaign saying that he has modernised the Conservative Party, and it is seriously going to maintain that in the 21st century people should still join the legislature of this country by heredity, chosen by a few other hereditaries. That is a ludicrous position, yet it is one that the party is determined to maintain and the Government have basically had to give in to blackmail.

Photo of Viscount Waverley Viscount Waverley Crossbench

My Lords, I believe that the majority of hereditary Peers know exactly what our contribution is to Parliament and to its future. When the appropriate time comes, we will work in that regard.

Photo of Lord Strathclyde Lord Strathclyde Leader of the Opposition In the House of Lords, Parliament

My Lords, I take this opportunity to set the record straight. Clauses 54 and 55 are important clauses on expulsion, and we wholly support them. We urged the Government to bring them forward but, quite rightly, they took the view that it was not possible for them to be passed today without a great deal of discussion and that that would imperil the whole of the Bill.

I spoke about the rest of the Bill earlier today and I am not going to repeat the points that I made. However, the charges made by the noble Lord, Lord McNally, are completely empty and actually faintly shocking. After the noble Lord pleaded to be part of the discussions and the Government invited him in, in good faith, I find the sort of language that we have heard tonight disappointing from the leader of a political party in this House. I support the Government.

Division on Clause 53

Contents 42; Not-Contents 98.

Clause 53 disagreed.

Division number 6 Constitutional Reform and Governance Bill — Committee (and remaining stages)

Aye: 40 Members of the House of Lords

No: 96 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Amendment 30 not moved.

Clause 54 : Removal of members of the House of Lords etc

Amendment 31 not moved.

Amendment 32

Moved by Lord Selsdon

32: Clause 54, page 31, line 3, leave out from "excepted" to end and insert "elected hereditary peer or an appointed"

Photo of Lord Selsdon Lord Selsdon Conservative 1:45 am, 7th April 2010

The caterwauling of the Liberal alley cats has caused me a little bit of concern, and I should like a bit of clarification from the Government on what it means to be elected or accepted and elected or appointed. By my reckoning, about 420 Members of this House have been appointed by Mr Blair or Mr Brown under what you would call parliamentary patronage. I would be grateful if we could have a definition from the Government. An appointed Peer is someone appointed under the Life Peerages Act 1958. An elected hereditary Peer is someone accepted under the House of Lords Act 1999 and then elected. Is that true or is it not true? I beg to move.

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

My Lords, I feel that the Committee is waiting for me to answer the noble Lord's question. To be truthful, I do not know the exact answer, but he is normally right.

Photo of Lord Selsdon Lord Selsdon Conservative

My Lords, I am most grateful for that. Having made the point, unless anyone wishes to add anything, I beg leave to withdraw the amendment.

Amendment 32 withdrawn.

Amendments 33 to 42 not moved.

Division on Clause 54.

Contents 45; Not-Contents 94.

Clause 54 disagreed.

Division number 7 Constitutional Reform and Governance Bill — Committee (and remaining stages)

Aye: 43 Members of the House of Lords

No: 92 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Schedule 8 : Conditions for removal of members of the House of Lords etc

Amendments 43 to 47 not moved.

Schedule 8 disagreed.

Clause 55 : Expulsion and suspension of members of the House of Lords

Amendments 48 to 58 not moved.

Clause 55 disagreed.

Amendments 59 to 72 not moved.

Clause 56 : Resignation from House of Lords

Amendments 73 to 77 not moved.

Clause 56 disagreed.

Clause 57 : Disclaimer of peerage

Amendments 78 to 87 not moved.

Clause 57 disagreed.

Amendment 88 not moved.

Clause 58 : Supplementary provision

Amendments 89 to 92 not moved.

Clause 58 disagreed.

Amendments 93 to 102 not moved.

Clause 59 : Tax status of MPs and members of the House of Lords

Amendments 103 and 104 not moved.

Amendment 105

Moved by Lord Selsdon

105: Clause 59, page 33, line 37, leave out "and domiciled"

Photo of Lord Selsdon Lord Selsdon Conservative 1:58 am, 7th April 2010

My Lords, this is a probing amendment asking once more for a definition. I am getting extremely concerned about the shortage of good words. The Liberal Democrats are for ever going on about non-doms. The Conservative Party goes on about non-doms. I should like to have a definition once and for all of the term "domicile". I declare an interest as a Scot. As a Scot with a lair, which is a grave, and a mausoleum, I am for ever and a day domiciled in Scotland. My family, however, have a habit of dying at sea. When you die at sea, there is a difficulty as to where you were domiciled at the time of your death.

I want to get the Government to describe the term "domicile". At birth in the United Kingdom in general you take the domicile of your father, which is called domicile of birth. At the age of 16, you may change that domicile to domicile of choice. However, if you change your domicile to domicile of choice, you must sever all relationships with your domicile of origin. This makes no problem at all for people who are born in the United Kingdom and take their father's domicile, but for those who may have foreign parents, domicile is an interesting and difficult situation.

The way the Government have worded this part of the Bill is not altogether clear. "Resident" and "ordinary resident" are extremely clear, but when you use the word "domicile" and talk about estate duty for part of the year, you have a considerable problem if you are looking at the application of death taxes or inheritance taxes in many countries around the world, particularly those which do not have a double taxation agreement. I should like the Minister to give an official definition of "domicile". I beg to move.

Photo of Lord Tunnicliffe Lord Tunnicliffe Government Whip, Government Whip

My Lords, I shall not be the first person in this House to disappoint the noble Lord, Lord Selsdon, and probably not the last. I cannot answer his question in those terms, but I can answer it in terms of the Bill. By omitting "and domiciled" from Clause 59(2), MPs and Peers would be deemed to be only resident and ordinarily resident, not domiciled. If MPs and Peers are not deemed to be domiciled, they would be able to access the remittance scheme and, as such, not pay full UK tax on their worldwide income. It is the consensus of all parties that that should not take place. I ask the noble Lord to withdraw his amendment.

Photo of Lord Selsdon Lord Selsdon Conservative

My Lords, if everyone is happy with that very clear definition, I would advise your Lordships that in the international courts from time to time there may be certain disputes. But perhaps that is the official declaration of domicility today. The word "deem" is also difficult, because against "deem" sometimes goes "the great redeemer". However, in view of the enthusiasm that the Government have shown for giving up using "dom" and sticking to "domiciled", I beg leave to withdraw the amendment.

Amendment 105 withdrawn.

Amendments 106 to 114 not moved.

Amendment 114A

Moved by Lord Tunnicliffe

114A: Clause 59, page 34, line 36, leave out paragraph (c)

Photo of Lord Tunnicliffe Lord Tunnicliffe Government Whip, Government Whip

My Lords, I am assured that this is a consequential and technical amendment. I beg to move.

Amendment 114A agreed.

Amendment 115 not moved.

Clause 59, as amended, agreed.

Clause 60 : Tax status of members of the House of Lords: transitional provision

Amendments 116 to 120 not moved.

Amendment 121

Moved by Lord Tunnicliffe

121: Clause 60, page 35, line 10, at end insert-

"(4A) But section 3(1)(b) of the 1999 Act does not apply in relation to M before the end of the period of three years beginning with the date on which the notice is given."

Amendment 121 agreed.

Amendment 122 not moved.

Amendment 123

Moved by Lord Tunnicliffe

123: Clause 60, page 35, line 14 , at end insert-

"(5A) But subsection (5)(b) does not apply before the end of the period of three years beginning with the date on which the notice is given."

Amendment 123 agreed.

Amendments 124 and 125 not moved.

Amendments 126 and 127

Moved by Lord Tunnicliffe

126: Clause 60, page 35, line 21, leave out from "peerage" to "subsection" in line 22 and insert "is conferred on M or M succeeds to a peerage,"

127: Clause 60, page 35, line 23, at end insert-

"If subsection (4)(a) has applied to M, it does not stop M becoming excepted from section 1 of the House of Lords Act 1999 again by filling a vacancy under section 2 of that Act after the notice is given."

Amendments 126 and 127 agreed.

Amendments 128 and 129 not moved.

Clause 60, as amended, agreed.

Amendment 130

Tabled by Lord Selsdon

130: After Clause 60, insert the following new Clause-

"Tax status and citizenship of members of the House of Lords

(1) Any Member introduced into the House of Lords after the passing of this Act shall be a British citizen for taxation purposes.

(2) For the purposes of this Act "British citizen" means-

(a) a citizen of England, Wales, Scotland or Northern Ireland;

(b) a citizen of Her Majesty's Crown Dependencies and Her Majesty's Crown Dependencies are-

(i) the Isle of Man,

(ii) the Bailiwick of Jersey,

(iii) the Bailiwick of Guernsey; or

(c) a citizen of Her Majesty's Overseas Territories who holds British citizenship under the British Overseas Territories Act 2002 and Her Majesty's Overseas Territories are-

(i) Anguilla,

(ii) Bermuda,

(iii) British Antarctic Territory,

(iv) British Indian Ocean Territory,

(v) British Virgin Islands,

(vi) Cayman Islands,

(vii) Falkland Islands,

(viii) Gibraltar,

(ix) Montserrat,

(x) Pitcairn, Henderson, Ducie and Oeno Islands,

(xi) St Helena and her dependencies of Ascension Island and Tristan da Cuhna,

(xii) South Georgia and South Sandwich Islands.

(3) For the purposes of this Act a member of the House of Lords who is a citizen of one of Her Majesty's Realms, may be granted British citizenship without surrendering the current citizenship of a country of Her Majesty's Realms which are-

(a) Antigua and Barbuda,

(b) Australia,

(c) The Bahamas,

(d) Barbados,

(e) Belize,

(f) Canada,

(g) Grenada,

(h) Jamaica,

(i) New Zealand,

(j) Papua New Guinea,

(k) St Kitts and Nevis,

(l) St Lucia,

(m) St Vincent and Grenadines,

(n) Solomon Islands,

(o) Tuvalu.

(4) For the purposes of this Act, a member of the House of Lords who was born in any country of the Commonwealth prior to independence of that country may be granted British citizenship without surrending the current citizenship of the country of birth."

Photo of Lord Selsdon Lord Selsdon Conservative

I shall take only 30 seconds. The amendment concerns 30 territories around the world to which British citizenship relates. I want to make sure that we do not forget that British citizens are not necessarily residents of the United Kingdom, but they may be residents of many of Her Majesty's territories around the world. All that I should like to be sure of is that these territories are on the record and that everyone understands that, when we are discussing taxation or membership of the House of Lords of British citizens, they are British citizens.

Amendment 130 not moved.

Clause 61 : Demonstrations etc in the vicinity of Parliament

Amendments 131 and 132 not moved.

Clause 61 agreed.

Schedule 9 : Amendment to Part 2 of the Public Order Act 1986 etc

Amendments 133 to 137 not moved.

Schedule 9 disagreed.

Clause 62 : Time limit for human rights actions against Scottish Ministers etc

Debate on whether Clause 62 should stand part of the Bill.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

My Lords, the noble Lord, Lord Bach, said some considerable time ago when the debate started that it was the Government's intention to delete these clauses from the Bill. Perhaps the Minister could confirm that the effect of these clauses, were they to be enacted, would be to repeal the Convention Rights Proceedings (Amendment) (Scotland) Act 2009 and statutory instrument 2009/1380, which I recall debating in this House last year. Is the Minister content that, if these clauses are not enacted, the legislation passed by the Scottish Parliament will still be effective?

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

Yes, I am content that the Scottish legislation will be effective. This has been looked into.

Clause 62 disagreed.

Clauses 63 to 65 disagreed.

Schedule 10 : Judicial appointments etc

Amendment 138 not moved.

Schedule 10 disagreed.

Clauses 66 and 67 disagreed.

Clause 68 : The office of the Comptroller and Auditor General

Amendment 139 not moved.

Clause 68 disagreed.

Clause 69 : Status of the Comptroller and Auditor General etc

Amendment 140 not moved.

Clause 69 disagreed.

Clause 70 disagreed.

Clause 71 : Remuneration package of the Comptroller and Auditor General

Amendment 141 not moved.

Clause 71 disagreed.

Clause 72 : Resignation or removal of the Comptroller and Auditor General

Amendments 142 and 143 not moved.

Clause 72 disagreed.

Clauses 73 and 74 disagreed.

Schedule 11 : The National Audit Office

Amendments 144 to 147 not moved.

Schedule 11 disagreed.

Clause 75 disagreed.

Schedule 12 disagreed.

Clauses 76 to 80 disagreed.

Schedules 13 and 14 disagreed.

Clauses 81 and 82 disagreed.

Clauses 83 to 85 agreed.

Clause 86 : Freedom of information

Amendment 148

Moved by Lord Bach

148: Clause 86, page 50, line 13, at end insert-

"(2) The Secretary of State may by order make transitional, transitory or saving provision in connection with the coming into force of paragraph 4 of Schedule 15 (which reduces from 30 years to 20 years the period at the end of which a record becomes a historical record for the purposes of Part 6 of the Freedom of Information Act 2000).

(3) An order under subsection (2) may in particular-

(a) make provision about the time when any records are to become historical records for the purposes of Part 6 of the Freedom of Information Act 2000, and

(b) make different provision in relation to records of different descriptions.

(4) An order under subsection (2) is to be made by statutory instrument.

(5) A statutory instrument containing an order under subsection (2) is subject to annulment in pursuance of a resolution of either House of Parliament."

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice 2:15 am, 7th April 2010

My Lords, we move to Part 12 of the Bill and the Dacre report. In moving from a 30-year to a 20-year rule for the transfer of records to the National Archives and other archives and, in parallel, reducing the period during which certain exemptions in the Freedom of Information Act apply, the Government will be providing earlier access to a significant volume of material.

Of course, it is right that such a move involves careful preparation and is managed with an eye on the cost to the public purse. It is estimated that central government alone holds approximately 2 million paper files between 20 and 30 years old that would need to be reviewed as part of this process. A power is already included in the amendments to the Public Records Act in Clause 85 to allow us properly to prepare for and manage this change. The power is flexible but it is anticipated that two years-worth of records will be transferred to the National Archives or other place of deposit each year during a 10-year transitional period. These amendments to Clause 86 and Schedule 15 create a power to make corresponding transitional arrangements for entry into force of the amendments to the Freedom of Information Act. This is a logical extension.

The transitional provisions, which can be applied for different periods for different types of record, are needed because large volumes of requests for some information over 20 years old are anticipated. A gradual reduction would help us properly to manage the resource burden resulting from the changes to the Freedom of Information Act. I beg to move.

Amendment 148 agreed.

Clause 86, as amended, agreed.

Schedule 15 : Amendments of Freedom of Information Act 2000

Amendments 149 and 150 not moved.

Amendments 151 and 152

Moved by Lord Bach

151: Schedule 15, page 132, line 15, leave out "In section 62(1)" and insert-

"(1) Section 62 (interpretation of Part 6) is amended as follows.

(2) In subsection (1)"

152: Schedule 15, page 132, line 16, at end insert-

"(3) After subsection (2) insert-

"(2A) Until the end of the period of 10 years beginning with the commencement of paragraph 4 of Schedule 15 to the Constitutional Reform and Governance Act 2010, subsection (1) has effect subject to any order made under section 86(2) of that Act.""

Amendments 151 and 152 agreed.

Schedule 15, as amended, agreed.

Clause 87 agreed.

Amendment 153 not moved.

Clauses 88 and 89 disagreed.

Clause 90 : Parliamentary elections: counting of votes

Amendment 154 not moved.

Clause 90 agreed.

Clause 91 disagreed.

Amendment 155

Moved by Lord Ramsbotham

155: After Clause 91, insert the following new Clause-

"Prisoner voting rights

Section 3 of the Representation of the People Act 1983 is omitted."

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

I fully accept that the Bill that we are now discussing is but a shadow of the one that came before us yesterday afternoon. I am conscious of the hour and do not wish to detain your Lordships on a subject which many may deem peripheral. However, I submit that it is actually far from peripheral in the context in which we are conducting this wash-up-namely, the forthcoming general election-because it has to do with the way in which the Government have chosen to handle an issue that could endanger the whole process. Indeed, it could have been dealt with years ago. If this were a normal Committee stage, I would now set out my reasons in full, cataloguing what has happened in the nine years since the High Court rejected the case made by three serving prisoners, that all prisoners should be enfranchised in accordance with Protocol 1, Article 3 of the European Convention on Human Rights, which this Government caused to become part of the United Kingdom law in October 2001.

One of the three, John Hirst, appealed to the European Court of Human Rights, which in March 2004, unanimously ruled against the UK Government's blanket ban on sentenced prisoners voting, which had been set out in Section 3 of the Representation of the People Act 1983, but dated back to the Forfeiture Act 1870. The government appeal to the Grand Chamber of the European Court was dismissed in October 2005.

In logic, you would expect that a Government who pride themselves on acting within the law and who have introduced more legislation than any other in our recent history, would abide by the decision of the highest court to which it could appeal and take the necessary steps to implement what was laid down. But no, frightened of offending reactionary public opinion by appearing not to be tough on criminals-which is not the same as Mr Blair's unfulfilled pledge to be tough on crime and the causes of crime-the Government determined to prevaricate for as long as possible, going to absurd lengths, such as suggesting that prisoners had lost the moral authority to vote.

Civil and political rights determine who may vote, not moral authority and goodness knows who else the Government would have deemed to have lost the moral authority to do so, with the notable exception of Members of this House, if they decided to go down that route. The European Court was damning in its criticism of the Government's line, saying that it found no evidence to support the claim that disfranchisement deterred crime and that there was no evidence that the Government had ever sought to assess the proportionality of the ban as it affected convicted prisoners. The Grand Chamber went even further by stating that there was no place under the European convention where tolerance and broadmindedness are the acknowledged hallmarks of a democratic society for automatic disfranchisement based purely on what might offend public opinion.

The prevarications included the charade of two so-called consultations. The first, initiated in December 2006 and promising a legislative solution early in 2008, was farcical on two counts: first, it was based on the wrong question. The court having ruled that all convicted prisoners have the right to vote, the issue should have been who should not, rather than who should be allowed to do so. Secondly, there was no response until April 2009, over two years later, and a year after the promised solution. The second consultation, announced at the same time as the results of the first, was also farcical on two counts: first, it lasted for 20 weeks, ignoring the Government's published code of practice laying down a maximum of 12 weeks; and, secondly, because despite frequent questioning it was clear from the start that the Minister of Justice had no intention of doing anything before the election.

Comparisons are odious, but what makes that delay even more reprehensible is that, during that period, the Ministry of Justice was abusing the process in a completely different way, again for its own ends. On 15 March this year, the chairman of the Bar Council drew the attention of a Grand Committee of this House to the fact that the Minister of Justice, prevaricating over prisoner voting consultations, had rushed through a consultation on draft conditional fee agreements, stipulating that consultation should be limited to a mere four weeks, rejecting all pleas for extensions and publishing his response a mere two weeks later. He justified that deviation from the code of practice as being "in order to be in a position to implement the proposal as soon as possible". The Bar Council chairman commented that that wording made it sound as though there were not so much a predisposition to implement the proposal, as a predetermination. The same observation applies to the issue of prisoners voting with the addition of the word "not" before "to implement".

The Committee of Ministers at the Council of Europe has publicly expressed its condemnation of that prevarication three times in the past six months, most recently on 8 March, when it said that it was seriously concerned that a failure to implement the European Court's judgment has given rise to a significant risk that the next United Kingdom general election would be performed in a way that failed to comply with the European convention and requiring the Government to rapidly adopt measures of an interim nature to ensure the execution of the court's judgment before the forthcoming election. In other words, we are being accused of behaving like a recalcitrant third-world country, rather than the country which, until now, has had a proud record of setting examples for others to follow. Clearly, the possible threat to the general election is not regarded as requiring the same urgency as conditional fee agreements.

Much has been said today about the contempt in which the parliamentary process is being treated during this wash-up. I have sided not just with the noble Lord, Lord Rooker, but with all those who have called for time to be allowed for proper scrutiny of legislation and for Bills to deal with discrete issues, rather than the vast catch-alls that have marked criminal justice Bills in particular. I cannot imagine why the Government have not included this issue in all that legislation. Time and again, it has had to be raised whenever an opportunity arises, such as tonight. I hope that the issue will be put to bed very quickly by the next Government, because it is a disgrace that this has gone on for six years, which, as I have pointed out previously, is longer than the whole of World War II.

There is another reason why I want to put the issue on the record. The Government's prevarication amounts to nothing less than deliberate and inexcusable defiance of the rule of law as laid down by the courts. At the same time, they have gone to extreme length to punish those who do the same thing, as demonstrated by the record numbers in our prisons, the fact that we have more life-sentence prisoners than the rest of Europe added together, and that more than 3,000 new laws carrying prison sentences have been introduced.

At a time when the reputation of Parliament is at an all-time low, what respect can anyone have for a Government who so flagrantly fail to practise what they preach? What message does that attitude to the law send, not just to criminals but to young people who may be tempted to turn to crime?

Ghana was faced by exactly the same situation in November last year, when two lawyers took the Government to court for refusing to allow prisoners to vote. In sharp contrast to this country, the High Court found against the Government on 23 March-a mere four months later-contending that it found it extremely difficult to understand what constitutionally legitimate interest was served by the non-recognition of prisons as places of residence for the purpose of voter registration. The court commended the lawyers for advancing the frontiers of human rights in Ghana's justice system. I find it ironic to be proposing the amendment because of the refusal of the Secretary of State for Justice to advance the frontiers of human rights in the United Kingdom's justice system when he was the Minister responsible for the introduction of human rights into our law in the first place.

As the Minister knows, I have never called for all prisoners to be allowed to vote. Clearly, some have committed crimes that justify that right being removed, but that should be decided by the courts as part of the sentence. Had we been having a normal Committee, I would have been able to set that out in more detail but, in the mean time, I ask for the removal of a wholly unnecessary blot on our national escutcheon, which we share with very few countries in Europe, such as Albania and Bulgaria, by the omission of Section 3 of the Representation of the People Act 1983, thus allowing prisoners to execute their civil and political right to vote. I beg to move.

Photo of Lord Grenfell Lord Grenfell Other

I strongly support what the noble Lord, Lord Ramsbotham, has just said. The fact that he felt it necessary at this hour to take eight minutes to make a very important point demonstrates how we have lost so much in this House by not having had the time to have a proper debate on the Bill. I feel strongly that he made a very good point. It is awful that this House has to get through the Bill, arriving at 2.30 in the morning, when we should have had at least the chance to have a proper debate on it. As I said earlier, the whole Bill should have been held over until the next Parliament. It would have been so much better if we had had the chance to have a proper debate during the next Parliament. I have a feeling that whoever was in charge of the wash-up has put fast-forward on to spin-dry because we have not had a chance. This is typical of what we said earlier, but there are good points in the Bill. There are 42 pages of amendments, yet we have got through them in a very short time because we have not had a chance to debate them. They have been withdrawn one after the other. Many of them were making very good points. I re-emphasise that I hope that this will not happen again. It is a sad day for this House that we arrive at the end of our discussion of a constitutional reform Bill at this hour and have had to take so little time to debate the important issues that have just been raised by the noble Lord, Lord Ramsbotham.

Photo of Earl Ferrers Earl Ferrers Conservative

I agree with both the noble Lords who have just spoken that it is a terrible thing that all these important matters dealing with the constitution are being done in the course of a wash-up. It is not only the two noble Lords who have so complained but also the Select Committee on the Constitution. I remind noble Lords of what it said at paragraph 45:

"The House may take the view 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".

It goes on:

"In any event, 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' and be denied the full parliamentary deliberation which they deserve".

In paragraph 47, the report states:

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

Both noble Lords who have just spoken made that point, and many other noble Lords feel the same. Although we have done the best with the Bill that is in front of us, it is wrong to try to alter the constitution in such a hurried and undebated way.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

Returning to the issue of the votes of prisoners, I hope that whichever party comes into power after 6 May will make this matter a priority. It will be very sad if we continue for years to come to have my noble friend Lord Ramsbotham asking whichever Government are in power to get on with something that has become a disgrace.

Photo of Lord Elton Lord Elton Conservative

The reputation of the wash-up process is now in shreds and it is not necessary to go on about it. The point raised by the noble Lord, Lord Ramsbotham, is a serious issue. Your Lordships may not find it attractive at first glance because it deals with prisoners, but were we able to have a full-scale debate, I feel confident that we could convince your Lordships that this is something that needs to be done urgently for reasons quite separate from the need to abide by the law as established by the European courts. We do not have that opportunity. I add my support, without such a debate, to the amendment moved by the noble Lord, Lord Ramsbotham. If the Government say that they cannot accept it because it is now too late to carry out the duty that this would impose on them, that reflects a shameful light upon them.

Photo of Lord Norton of Louth Lord Norton of Louth Conservative

I will briefly piggyback on the amendment in the light of what the noble Lord, Lord Grenfell, and my noble friend Lord Ferrers have said. This will save some time because I will not need to move Amendment 161. I take my noble friend Lord Elton's point about the wash-up; I intend only to make a constructive suggestion. I have made the point that in the new Parliament the Constitution Committee of your Lordships' House should carry out an inquiry into wash-up, which would enable us to stand back, look at the whole issue and recommend how this ought to be addressed in the future. I think that that is the way forward.

Photo of Lord Lucas Lord Lucas Conservative

My Lords, I totally support the amendment in the name of the noble Lord, Lord Ramsbotham. I merely note that, were it to be passed, we would be left in the company of murderers and rapists only. That may be disfranchisement and not really the place in which we want to find ourselves.

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

I record on behalf of my noble friends that we, too, support the noble Lord, Lord Ramsbotham, as we have consistently on a number of occasions. It is most unfortunate that this has come at this juncture, but that is scarcely his fault. It is entirely the fault of the Government, who have left it to this very late stage. It is extraordinary that the Government see fit to respond to the concerns of the Daily Mail rather than to obey the Court.

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

My Lords, I thank noble Lords who have spoken in this debate, which has been about two things: the addition to the Bill which the amendment proposes-it is not in the Bill, but is an amendment to it; and the Constitution Committee and the wash-up generally.

I heard the extensive criticisms of the Bill that were made at Second Reading and repeated again this morning, and obviously we have taken note of them. A number of items of constitutional importance have been dropped by the Government as a consequence of what has been said. Indeed, it is worth making the point that, ironically, we have been criticised for dropping some of the things that we have dropped, but lessons have no doubt been learnt. Once again, I repeat how grateful we are to noble Lords who had strong feelings about this Bill and who have taken part in discussions today so that, at the end of the day, we have a Bill to send back to the other place. I repeat again that we very much take on board what my noble friend Lord Rooker said about post-legislative scrutiny of this Bill in time to come.

Let me turn to the issue of the amendment. Everyone in the Committee is well aware of the expertise and high reputation of the noble Lord, Lord Ramsbotham, when he talks about these matters. He is attempting through the amendment to repeal Section 3 of the Representation of the People Act 1983, thereby removing the statutory prohibition on voting by convicted prisoners. It remains the Government's view that the right to vote goes to the essence of the offender's relationship with democratic society, and the removal of the right to vote in the case of some convicted prisoners can be a proportionate and proper response following conviction and imprisonment. Indeed, the noble Lord himself said just as he ended his address that he had never believed that all prisoners, whatever they had done, should be given the right to vote.

Our approach to implementing voting rights for prisoners aims to arrive at a solution that respects the judgment of the Court in Hirst while taking into account our own traditions. Indeed, the Committee knows that the European Court affords a wide margin of appreciation not just to the United Kingdom but to other countries when they pass their judgments. We have been consistently clear that we oppose enfranchising all prisoners irrespective of the seriousness of their crimes or the length of their sentence, which would be the actual effect of the amendment. We consider that the more serious the offence, the less an individual should have the right to retain the right to vote when sentenced to imprisonment. Tying the entitlement to vote to sentence length has the benefit of establishing a clear relationship between the seriousness of the offence or offences and the suspension of the right to vote.

Our proposed approach to the enfranchisement of prisoners is therefore based on the length of custodial sentence to which a prisoner has been sentenced. We have consulted on a range of options that would allow those receiving sentences of up to one year, two years or four years imprisonment to retain the right to vote. We are considering the responses to the consultation and will set out our next steps towards implementation once the responses have been analysed. However, even for those, this amendment would not deliver a satisfactory outcome-which is unlike the view of the noble Lord who tells us that he does not support the enfranchisement of all prisoners. While it would remove the current statutory bar by repealing Section 3 of the Representation of the People Act 1983, it puts nothing in its place regarding the necessary arrangements which would enable prisoners to exercise their right to register and to vote in practice.

Some people believe that once the statutory bar is removed, there would be few practical considerations of substance to be dealt with. We say that that would not be true. In contrast, I have to tell the Committee that extending the franchise to convicted prisoners to any degree would require obviously a considerable number of issues to be resolved and settled in electoral law, if nothing else, if it is to be done consistently and effectively. Let me mention just a few of those issues. Where should prisoners be entitled to be registered to vote-for example, in what constituency? How should prisoners be recorded on the register? How would prisoners cast their votes-by post, by proxy or a combination of the two? How would the security of the ballot be enforced? This amendment would provide for none of those things. It would risk creating inconsistencies in approach. Electoral administrations would not have clarity on how to implement the legislation, which could lead to anomalies in arrangements. A rushed implementation of prisoners' voting rights may also mean that it is not possible to ensure that the right systems are in place to prevent electoral fraud.

It is vital that Parliament has proper time to scrutinise, debate and amend proposals for enfranchising prisoners. [Laughter.] If noble Lords say, as they do, with some justification, that they should have had longer to review this Bill, they can hardly support this amendment. Supporting amendments to complex electoral legislation, given the lack of parliamentary time available, and seeking to implement Hirst 2 as an amendment to this Bill is not appropriate. I hope that the noble Lord will withdraw his amendment.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

My Lords, I thank the Minister for that reply. I have to admit that the wording of this amendment was suggested by the excellent Public Bill Office, which has been overworked on this Bill as much as on anything else. As I have made clear on the other occasions when I have tabled this amendment, I am not in favour of all prisoners voting. However, to go into all the details of that at this stage of this Bill would be utterly inappropriate.

As regards timing, the Government have now had six years since the ruling of the court, so to come at this at a rush now seems utterly inappropriate. The last part of what the Minister had to say was highly inappropriate in relation to the Bill that we are discussing and the stage at which we are discussing it. It seems paradoxical, given that we have been fussed about the rush with which things have been put to us, to be ending up talking about a delay during which something could have been brought forward.

However, not just in view of the hour but in view of the stage of this Bill, it is obviously highly inappropriate to take this forward. I hope that the points that noble Lords were good enough to make will be taken on board in relation to the wash-up process and the need to get on with this issue and avoid the shame of being criticised by Europe for the fact that we have failed to take action. I beg leave to withdraw the amendment.

Amendment 155 withdrawn.

Clause 92 agreed.

Clause 93 agreed.

Clause 94 : Power to make consequential provision

Amendments 156 to 158 not moved.

Clause 94 agreed.

Amendments 158A and 158B

Moved by Lord Bach

158A:Clause 95, page 53, line 41, leave out subsection (1)

158B: Page 54, line 1, leave out "any other Part of"

Amendments 158A and 158B agreed.

Clause 95 : Extent, commencement, transitional provision and short title

Photo of Lord Geddes Lord Geddes Conservative

I must advise the Committee of two misprints at this point in the Marshalled List. I am sure that everyone will have spotted the fact that Amendment 161 should be taken after Amendment 160, and the italics regarding Clause 95 standing part should come after Amendment 162.

Amendment 159

Moved by Lord Bach

159: Clause 95, page 54, line 10, leave out paragraph (a)

Amendment 159 agreed.

Amendments 159A and 159B

Moved by Lord Bach

159A: Page 54, line 12, leave out from "60" to the end

159B: Page 54, line 13, leave out "other than section 91"

Amendments 159A and 159B agreed.

Photo of Lord Elton Lord Elton Conservative

Could we possibly have an indication of what the amendments are about?

Photo of Lord Tunnicliffe Lord Tunnicliffe Government Whip, Government Whip

I am assured by officials that all the manuscript amendments are purely consequential.

Photo of Lord Geddes Lord Geddes Conservative

Would it assist the Committee if I read out the amendments? However, I do not think they would enlighten noble Lords too much if I did.

Amendments 160 to 162 not moved.

Clause 95, as amended, agreed.

In the Title :

Amendments 162A and 162B

Moved by Lord Bach

162A: Line 2, leave out from "Settlement" to first "to" in line 4

162B: Line 5, leave out from "treaties;" to "to" in line 6

Amendments 162A and 162B agreed.

Amendment 163 not moved.

Amendments 163A and 163B

Moved by Lord Bach

163A: Line 7, leave out from "elections;" to second "to" in line 8

163B: Line 11, leave out from "holders;" to "to" in line 13

Amendments 163A and 163B agreed.

Amendments 164 and 165 not moved.

Amendments 166 and 167

Moved by Lord Bach

166: Line 16, leave out from "purposes;" to first "to" in line 18

167: Line 18, leave out from "1986;" to first "to" in line 19

Amendments 166 and 167 agreed.

Photo of Lord Elton Lord Elton Conservative

May I make the point that it would be quite easy to have these photocopied and circulated, as manuscript amendments have been in the past.

Photo of Lord Geddes Lord Geddes Conservative

The noble Lord will find that the amendments were available in the Printed Paper Office.

Photo of Lord Elton Lord Elton Conservative

I unreservedly withdraw that comment.

Amendments 168 and 169

Moved by Lord Bach

168: Line 19, leave out from "administrations;" to first "to" in line 20

169: Line 20, leave out from "holders;" to second "to" in line 23

Amendments 168 and 169 agreed.

The Title, as amended, agreed.

House resumed. Bill reported with amendments. Report and Third Reading agreed without debate. Bill passed and returned to the Commons with amendments.