Committee (and remaining stages)

Part of 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 Norton of Louth Lord Norton of Louth Conservative 12:06 am, 7th April 2010

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.