Select Committee on Public Administration Tenth Report

Conclusions and recommendations

Introduction

1.  This Report makes a number of constructive suggestions as to how the Government's draft bill could be improved. This is only natural: we have campaigned over the years for legislation covering these areas, and developed detailed views of our own on the form that a statute should take. Any criticisms that we make do not detract from our certainty that, when the Constitutional Renewal Bill is presented in Parliament, it will be a landmark piece of legislation. It will open up some of the main prerogative powers—the secret powers of the Executive since time immemorial—to parliamentary approval and scrutiny. (Paragraph 5)

Civil service provisions

2.  There is much to welcome in the Government's proposals for the civil service. (Paragraph 8)

3.  The purpose of putting the civil service on a statutory footing is to provide the service with some protection against the kind of government that might seek to undermine its core values. It is this kind of government that we have in mind when seeking to improve the draft bill. It is not enough to rely on the understandings that might exist now between civil servants, Ministers and the Civil Service Commissioners; it is important to envisage a situation in which those understandings may have broken down. This in our view is the whole purpose of civil service legislation, and the reason that it is required at all. (Paragraph 11)

4.  We support the Government's intention to keep new civil service legislation focussed and limited to 'a few clauses'. As will become clear, however, our view is that a few clauses more are required to give adequate protection to the core values of the civil service. (Paragraph 15)

5.  The Joint Committee may wish to explore further if the draft bill would have the effect of restricting access to the Civil Service Commissioners by staff of the intelligence agencies, and if so, whether this restriction is appropriate. The Committee may also wish to explore if there is a good reason for excluding the intelligence agencies from the statutory requirement that their staff should normally be recruited on merit. (Paragraph 19)

6.  Giving Ministers the general power to appoint and dismiss civil servants does not seem in keeping with the Government's commitment to a civil service recruited on merit and able to serve administrations of different political persuasions. This is a matter that the Joint Committee may wish to investigate further. (Paragraph 22)

7.  Any code which failed to uphold the core values of the civil service as set out in the draft bill would be open to legal challenge. We would therefore insist on providing for parliamentary approval of the Civil Service Codes only if primary legislation failed to encapsulate these core values adequately. There is one area in which the draft bill is at best ambiguous in this respect. We are not convinced that the definition of "impartiality" is sufficiently clear on the face of the draft bill. We recommend that the need for civil servants to be able to work effectively for governments of different political persuasions should be set out explicitly in primary legislation. (Paragraph 28)

8.  Appointment on merit is central to ensuring an impartial and capable civil service. Any exceptions from this principle need to have an unimpeachable justification. (Paragraph 30)

9.  Whoever is formally responsible for making civil service appointments, it strikes us as wrong that the Commissioners for Revenue and Customs (to take one example) should be appointed other than on merit. We invite the Joint Committee to explore this issue in more depth. (Paragraph 32)

10.  We do not understand why it should ever be appropriate for the Government to make senior diplomatic appointments other than on merit following a fair and open competition. We call on the Government to make the public interest case for this form of patronage—if there is a case to be made—and we encourage the Joint Committee to consider whether this provision should remain in the draft bill. At the very least, it needs to be drawn more tightly to ensure that it could be used only very rarely. (Paragraph 35)

11.  We can see merit in the provisions in the draft bill allowing the Civil Service Commissioners to exempt certain recruitments from the requirement for selection on merit on the basis of fair and open competition. We expect that they will be used sparingly. It is entirely appropriate that decisions of this kind should be taken by the Commissioners, rather than by the Government. (Paragraph 36)

12.  It needs to be absolutely clear in primary legislation that no special advisers should be able to authorise expenditure, or to exercise either management functions or statutory powers. With this added protection, there would be no need for Parliament to control the number of Special Adviser appointments. (Paragraph 44)

13.  We are not convinced that consultation is an adequate safeguard to the independence of the First Civil Service Commissioner, and recommend that any appointment should also require the agreement of the Leader of the Opposition. (Paragraph 48)

14.  We suggest that the Joint Committee may wish to explore with the Government the circumstances under which it might be considered "appropriate" to make an appointment to the Civil Service Commission without the agreement of the First Civil Service Commissioner. Unless there is a strong justification for maintaining an exemption clause, we recommend that the draft bill should be clear that appointments of Civil Service Commissioners may only ever be made with the agreement of the First Civil Service Commissioner. (Paragraph 49)

15.  Appointment to longer, non-renewable terms of office will strengthen the independence of the Commissioners, and we welcome this provision wholeheartedly. (Paragraph 50)

16.  The Civil Service Commission's job is to regulate the Executive. It is therefore not appropriate for the Executive to have the power to control not only how much money is made available to the Commission, but also how that money should be spent. (Paragraph 54)

17.  Our concern is to ensure that, whatever model is used, and however that model might need to be modified, the Civil Service Commission should have complete financial and operational independence from the Government. We invite the Joint Committee to consider further how this independence might best be achieved. (Paragraph 54)

18.  We remain convinced that the Civil Service Commission should have the power to conduct independent investigations into the operation of the Civil Service Codes, other than in response to specific complaints from civil servants, and without the need for Government consent. (Paragraph 58)

19.  We invite the Joint Committee to consider further how the Civil Service Commission might be enabled to conduct independent investigations at its discretion, both in terms of the draft legislation and of any additional resources that the Commission might require. (Paragraph 58)

20.  The principle of promotion on merit which already exists within the civil service deserves to be placed on a statutory footing as much as the principle of appointment on merit. (Paragraph 61)

21.  We agree with the Government that the question of whether a minister is failing to respect the political neutrality of the civil service is better addressed as a political issue than a legal issue. However, this is an issue the Joint Committee may wish to consider further. (Paragraph 65)

22.  We recommend again that the draft Constitutional Renewal Bill should include measures to change fundamentally the way that Government is structured, by giving statutory functions to Government Departments, rather than to interchangeable Secretaries of State. (Paragraph 67)

23.  Were the draft bill to become law, it would be a welcome improvement on the current situation, which affords no statutory protection whatsoever to the core values of the civil service. The Government has produced two draft civil service bills in the last four years. We trust that our recommendations will receive due consideration; but it is now time to move from consultation to legislation. We welcome the announcement that a bill is expected to be in the Queen's Speech this autumn. (Paragraph 68)

War-making powers

24.  A Prime Minister should not be able to choose whether or not to seek the support of Parliament based on political expediency; nor should he be able to present information to Parliament in a way which is partial or subjective, leading Members of the Commons perhaps to support a conflict which they might not support if more information was available to them. (Paragraph 73)

25.  We are concerned that the terms of the resolution as drafted leave too much discretion in the hands of the Prime Minister. We would be more reassured if there were independent endorsement of information provided by the Prime Minister on a conflict, and of any decision that a conflict was too urgent or too secret to allow a prior debate and vote in the Commons. One option might be for this endorsement to come from the cross-party Intelligence and Security Committee. (Paragraph 74)

26.  The Government is concerned that "there could be some very serious and undesirable consequences of a failure to gain parliamentary approval for an operation which was underway", namely "to call into question the credibility of the UK's use of force, our international relations and crucially, the safety and morale of the UK Forces". This is the price of democracy, and is a risk that Prime Ministers should have to weigh up before taking the extraordinary step of entering into a conflict without a prior mandate from the House of Commons. (Paragraph 75)

27.  An explicit vote on retrospective approval of a conflict decision would have at least the advantage of enabling the Prime Minister to secure a clear democratic mandate for his decision. (Paragraph 76)

28.  We suggest that the Joint Committee on the draft bill may wish to explore further if and how it might be possible to ensure that a genuinely full and frank statement of the legal basis for a conflict decision can be published without revealing the Attorney General's full legal advice to the Government. (Paragraph 78)

29.  A parliamentary resolution may, for the moment at least, be the pragmatic way forward, as a first step towards establishing a legal principle for parliamentary involvement in conflict decisions. (Paragraph 79)

30.  It would be instructive to test the Government's proposed procedure and the alternatives by using some recent conflict decisions as case studies and imagining how the Prime Minister of the day might have involved Parliament if the Government's draft resolution had been in existence at the time. (Paragraph 80)

Treaties

31.  A safeguard that can be ignored at will is no safeguard at all. Other leading democracies do not allow their Governments to avoid their obligations to Parliament at their sole discretion. At the very least, the bill should either (a) define the circumstances in which a treaty might need to be ratified without giving Parliament 21 days in which to consider it, or (b) make it for Parliament (not the Secretary of State) to waive the 21-day requirement. We also invite the Joint Committee to consider whether 21 days offers adequate opportunity for proper parliamentary scrutiny of complex treaties. (Paragraph 87)

32.  If the House of Commons votes that a treaty should not be ratified, the Secretary of State should respect this view, and the House should not be asked to consider the same question again before the next parliamentary session. Clause 21 of the draft bill should be amended accordingly. (Paragraph 89)

Passports

33.  We recommend that the Government should announce the timetable for a consultation on passport legislation before the summer recess. (Paragraph 91)

Wider review of the royal prerogative

34.  We are delighted that the Government has now decided to conduct a scoping exercise of the prerogative powers, to consider the outcome of this work, and to launch a consultation on next steps. (Paragraph 92)

35.  We trust that the results of the scoping exercise of the executive prerogative powers will be completed and published as soon as possible. The exercise may well reveal areas of the prerogative which would benefit from further statutory provision. (Paragraph 92)

More power or status quo?

36.  What is very welcome is the Government's acknowledgment that it is inappropriate for the Executive to wield power which it has never been given by Parliament, but which it has retained from the time when monarchs wielded absolute power. The Government's proposals would effectively seek Parliament's permission to continue with something akin to the status quo. (Paragraph 93)

37.  We have identified loopholes in the proposals, which would allow the Executive to bypass at their discretion even prior parliamentary scrutiny of their decisions. These loopholes need to be removed or, at the very least, tightened so that it is not for the Government alone to decide when it can use them. (Paragraph 93)

38.  Rather than the status quo, however, we would have preferred to see Parliament and the people entrusted with real power, as promised by the Prime Minister. A perhaps unintended effect of placing prerogative power on the statute book without giving Parliament a role in how it is exercised is that it will become subject to scrutiny and decision, not by Parliament or by the people, but by the courts. (Paragraph 94)

39.  It is difficult if not impossible to pursue a coherent agenda of constitutional renewal in a landscape where the form and role of one of the main features—the House of Lords—remains undecided. (Paragraph 95)

Conclusion

40.  Overcoming disengagement from our political processes and institutions is one of the greatest challenges faced by politicians today. We hope that all sides of the House will engage constructively with this agenda: this is not a matter for partisan politics. (Paragraph 96)

41.  We also welcome the decision to legislate in those important areas of power held by the executive without Parliament's approval. The clauses on the civil service—although they could be improved—are a major step towards meeting a long-standing gap in the legislative framework. There are disappointingly limited measures proposed for the other prerogative powers in which we have taken an interest. (Paragraph 97)

42.  We welcome the Prime Minister's announcement that the Government will consult on "a major shift of power directly to citizens themselves" and will bring forward measures on community empowerment, "to give people greater power to influence local decisions". Measures of this kind were notably lacking in the draft bill, and we look forward to seeing the detail of the proposals. (Paragraph 98)

43.  The Constitutional Renewal Bill, when it is finally presented to Parliament, should be a seminal piece of legislation, reshaping the relationship between Government, Parliament, the courts and the people. Our recommendations are designed to help ensure that this is the case. (Paragraph 99)

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Prepared 4 June 2008