Examination of Witnesses (Questions 48-59)
PROFESSOR ROBERT BLACKBURN, PROFESSOR PETER HENNESSY AND SIR ROBIN MOUNTFIELD
24 APRIL 2008
Q48 Chairman: Let me extend a warm welcome to our next set of guests. I am delighted to welcome Professor Peter Hennessy who is Peter Hennessy, Robin Mountfield, who is a distinguished former civil servant, and Professor Robert Blackburn, a very distinguished academic. We are very glad to see you all. We want to know what you think about what the Government is proposing in this Bill. Earlier on our clerk noticed that on the monitors around the building this was being described as the daft Constitutional Reform Bill but we want to see if that is, in fact, the case. We particularly want to ask you about the areas this Committee is particularly interested in. We have drawn on all of you before over the years with your expertise. Shall I ask you just in general to start with your general take on what the Government is now proposing and you can focus on the bits that particularly interest you if you like.
Sir Robin Mountfield: As you know, I have been an advocate of Civil Service legislation for quite a long time and I welcome this very much. Having been away from the Civil Service a growing number of years I am conscious that I could be accused of golden-age-ism looking back to some mythical time in the past when everything was better. I do not believe that is true. I believe the Civil Service is vastly better now than the one I joined in 1961 in most respects. But it is subject to some new and enhanced pressures, particularly in the area of what is very loosely called politicisation. It is an inadequate phrase but it covers quite a range of things. Although I welcome this intention to legislate, these clauses are bare bones provisions. There are six areas where I think it is deficient: one is in the degree to which it specifies what should be in the Code. Another one is the lack of reciprocal obligation on ministers. As you know, I have taken a view on this which you have not agreed with in the past. The First Commissioner and the Committee on Standards in Public Life endorse that view, that there should be a requirement in this Bill, particularly since this is a Bill to constrain the prerogative. It is precisely the prerogative power claimed for the Prime Minister to lay down the obligation on ministers that, in my view, needs to be constrained in this area.
Q49 Chairman: Would it be not be enough to get it clearly said in the Ministerial Code what you are asking for?
Sir Robin Mountfield: Yes but the Ministerial Code has no form of authority at all. It is not laid down even by an Order of Council. It is purely an act by the Prime Minister of the day. So there is no opportunity of scrutiny, no opportunity for Parliament to express views on it, and so on. I think this needs to be one of the fundamental features of any attempt to lay down the requirements of impartiality of the Civil Service. The third area is the status of the Code. This does not give Parliament any opportunity to approve or disapprove or scrutinise in a formal sense. I think the area of special advisers is grossly deficient. There is no prescription of what they can and cannot do. Even the Cabinet Office draft in 2004 made some attempt in this area although it was an inadequate attempt. In principle, as Janet Paraskeva was saying, as it is left, with no limit on numbers or on role, they could take over the whole show in effect. I am not suggesting for a moment that any immediately likely government would do that but this is not a fair-weather Bill but meant to lay down the limits on what could happen if things went badly wrong. Personally I think the Commission ought to have powers and resources to initiate its own inquiries. I think the resources issue ought to be of a second order. The idea that Parliament should own those resources and powers is probably the right way forward. Finally, there is a group of, one might think, rather minor considerations: for instance, the power to dismiss is described in the Civil Service Management Code, which is not part of this Bill, as a prerogative power of ministers. If the Bill is to constrain the power of the prerogative, that is something that ought to be constrained. The power to influence promotions is very important indeed, as you were saying yourself. A thing I personally think the Civil Service Commission's powers ought to reflect is they should have regard to an obligation on candidates to be willing to serve a future administration as well as the present one. That is a very crucial test of political impartiality and it has been ignored in one or two cases of people who may well have been the best candidate for the job in some merit-based sense but who could not conceivably work for a future administration; that, to my mind, runs against the drift of impartiality. I mentioned at the beginning the shortcomings in the prescriptions on the Code itself. It is a very short set of words, much shorter than, for example, either in your Bill or in the 2004 draft. It uses the word impartiality. I do not know whether lawyers could make sense of that. The present Civil Service Code distinguishes impartiality, which one might take to mean, for example, treating individual citizens fairly, and political impartiality which is a whole raft of different considerations and that needs to be teased out.
Professor Hennessy: I think it is a very valuable step forward. I think we are going to be concentrating, because you want us to, on the things that are not there and could be improved so before I mention my anxieties can I say two things. I think the current Prime Minister deserves an enormous amount of credit for bringing this forward. It is not a week in which credit for the Prime Minister is abundant; it is almost as hard to find as a new mortgage but it has to be said. Secondly, credit to you and your Committee because until you investigated the prerogative, which has always been the secret garden of the British constitution, we had no key to get into it. The Parliament, the public and the scholarly trade, like myself and Robert, had no real way of getting into the prerogative and one of the first things you did—and I am glad your clerks have produced it—was to get the first definition we have ever had of what they were. It is still incomplete and the White Paper promises more. All credit to the Prime Minister and all credit to you for getting it on the agenda. When it began it was regarded in some quarters as Nerds Incorporated. I remember the previous Prime Minister had a go, I suspect, at all of us in this room in a debate on a Committee report from here when he said it is a fine thing for academic seminars but the people do not talk about it. You always know when people are on the rocks in this country politically when they either bring class into it or they mention the people. It means they are buggered and they do not know what to say next. All credit to you for sticking to it. I am with Robin on virtually everything he said about the Civil Service Commission side. I have just two thoughts on that before I say what I am really concerned about. When the Prime Minister came in with his draft of what he wanted to do in Number 10, the Civil Service Act was not there. It took a combination of Gus O'Donnell and Alistair Graham, the outgoing Standards Committee chairman, to get it in there which is interesting. It is to the credit of the Prime Minister that he put it in but it was not there in the original set that he came in with last June. What I am really concerned about more than anything else is war powers which is in the White Paper but not in the Bill because they are not going down the legislative route. I hope we can take a look at the war powers because there is nothing more fundamental. None of this is to do with nerds, or just a bit of it is: the flag bit, which shows my age, and also the statement of national values. I am one those who follow that great Brit, George Formby. All we need to know is it has "turned out nice again". That is all we need to know and anything else will lead us into the realms of absurdity which, if we still had them, the Ealing comedies would take-off but we have ceased to be an Ealing comedy nation and discovered the importance of being earnest which I have to say I do regret.
Professor Blackburn: Like Peter, I would like to congratulate the Government on actually grasping this nettle and bringing forward constitutional reform on this area. Probably, like Peter, I have been discussing the Royal Prerogative for 25 years or more in academic circles. It is a band wagon that started to roll in the 1980s and there have been lot of blueprints and draft legislation prepared on this such as Tony Benn's Crown Prerogatives (House of Commons Control) Bill in the 1980s. It is quite interesting that now really there is almost universal support for reform of prerogative powers, certainly across the front benches of the three main political parties. It is a good time to be tackling reform of the prerogative because there does seem to be political consensus behind reform of the prerogative whereas earlier on in the 1980s it was seen as very far fetched. So now we are starting from a good point to actually tackle the prerogative powers. The Governance of Britain document is certainly the best statement of constitutional ideology that has been produced by government since 1997. That said, it is difficult for me to start from the Governance of Britain's Green Paper, and perhaps I can go a bit further back to what I would like to have seen in the Green Paper itself. Generally one thing that has worried me about the Labour Government's constitutional reform agenda throughout has been its rather ad hoc approach. Particularly with such a wide-ranging constitutional agenda there is big danger of things not being joined up. That applies generally across constitutional reform far wider than this particular initiative but also it applies, to some extent, to the prerogatives that are being tackled here. Even this Bill itself is really an ad hoc collection of five issues and is not a comprehensive treatment of the Royal Prerogative. One other thing that bothers me, and you referred to this in your previous session also, is there is not really a firm emphasis upon the principle that Parliament should own these particular powers or should be the authority for these executive powers being exercised. The drafting of the Bill leads you to the conclusion that the Crown or government still owns these but there are some procedural requirements they are going to have to go through to operate them. It is important today that statements of constitutional principle are reflected in the statute book. If an ordinary citizen wants to know what are the powers with respect to going to war, or the powers with respect to treaty-making, you would have thought they would probably go to a statute entitled something like the War Powers Act or the Treaties (Parliamentary Approval) Act but here it is the Constitutional Renewal Bill. There is the question of accessibility and clarity, both in the presentation of these particular reforms and actually, to some extent, in the drafting. The drafting even of the treaty section could be a bit clearer. The fourth condition is bit obtuse; you have to read it two or three times to actually get any meaning out of it. There are a few other matters that I would like to have seen in this Bill but I do realise that this is a rolling programme of the Government and they cannot deal with everything at the same time. I have, in my career, made a special study of the dissolution of Parliament and I would like that to have been dealt with in this Bill as well but that may be going a little bit too far for the Government. It did make it quite clear in the Governance of Britain Green Paper, and also in the Prime Minister's statement to the House, that there would just be a motion for Commons approval to a dissolution. But nothing would be clearer to symbolise that Parliament is the ultimate authority over these matters than an Act of Parliament determining actually control of its own life.
Q50 Chairman: I am interested in what you say but I am wondering whether it does not conflict with Peter's George Formby principle: it has turned out nice again. If you had said not so very long ago that in this country we are going to get a government introducing a raft of measures of this kind to produce improvements to the way in which we are governed and improve the role of Parliament in all that, and that somehow we had to wait until a government came along that had some comprehensive constitutional settlement in its pocket—we do not do it like that, do we? We do the "it is turned out nice again" bit, which means muddling along, adding bits and actually getting somewhere and writing it down as we go along. In terms of that, this represents huge progress, does it not?
Professor Blackburn: It does in that sense but there are two factors, one of which is there are so many constitutional changes that have taken place, and are proposed to take place, that they do need to be pulled together with a fairly comprehensive view of our constitution. The other thing, as I said earlier on, is Labour has had policies on this for a very long time. They had policies on this in 1993 to reform the prerogative. They have been around a long time so why is this happening right now? I suspect one reason it is happening right now is because the opposition parties have been advocating these policies.
Q51 Chairman: Governments get interested in these things in opposition and then lose interest in them in government. What is interesting about this is that they have been interested in it in government for a variety of reasons. Peter, can I come back to you on the war powers because that is something we flagged up as a key area in our prerogative report some years ago along with treaties. We have treaties in here, which is basically codifying the Ponsonby Rules, but on war powers, although we recommended a legislative approach, the constitution's first meeting in the Lords recommended a convention approach and the Government has gone for a convention approach. Is this not adequate?
Professor Hennessy: I will come to the convention bit in a moment because the convention, as it is, is deficient even though I would have preferred a War Powers Act like this Committee. Can I point out that there is a slight contradiction in the Government's attitude to this because in the National Security Strategy that was published last month Chapter 2, Guiding Principles, which I do not think many people read because principles are boring and it is written in the standard Whitehall porridge, but there is the nearest thing in there, which is significant in terms of legislation and war powers, to an apology that the Government has given for Iraq. It is there but it is immensely fleeting and it is only a sentence: "Overseas, our belief in the rule of law means we will support a rules-based approach to international affairs, under which issues are resolved wherever possible through discussion and due process, with the use of force as a last resort."[12] That is the nearest thing we have had to an apology for Iraq but it was not noticed. What it means is the Prime Minister saying "I am anybody but Tony Blair and 2003 will never happen again." That sentence matters a great deal to the career Civil Service, the diplomats and the intelligence people. They noticed it and were very keen for something like that to be in there because they were deeply scarred by the abandonment of due process at pretty well every level and what the bulk of them regard as the illegality of that war. That really matters for Whitehall but it matters for Parliament too and also rules-based rule of law. I think that the rule of law does apply to war. If the rule of law does not apply to war, what is the point of it applying to almost anything else because it is the most dramatic, and drastic in many cases, act a State can take. But let's go to the convention as it now is. The thing that worries me most is the Prime Minister will decide on what information this House and the House of Lords is given before the convention, the resolution once it is through, is activated, and what worries me above all is the Attorney General's opinion, because if you remember from the Butler Report and from the subsequent leak of the full Attorney General's opinion of March 7, 2003, when you compare that with the shrivelled, inadequate, misleading version that was given, that is all the Cabinet got as well, on March 17 in an answer to the House of Lords, that is what really worries me because it is up to the Prime Minister, according to the White Paper, how much of the legal opinion is given, and they indicate they are going to give a summary, which was grossly inadequate. If you will forgive me for saying so, those of you who had worries about the war four or five years ago now, who may have voted for it with great anxiety and reluctance, if that full opinion had been available to you some of you might not have gone that way. I think it is absolutely fundamental, and more important than what I think is what the senior lord, Lord Bingham of Cornhill said in the Williams Lecture in Cambridge in November 2006 on the rule of law. "There seems to me to be room to question whether the ordinary rules of client privilege, appropriate enough in other circumstances, should apply to a law officer's opinion on the lawfulness of war: it is not unrealistic in my view to regard the public, those who are to fight and perhaps die, rather than the Government, as the client."[13] I think that is profoundly true; Parliament is the client as well as the people, and you will remember what Lady Hale, the law lord, said in the Gentle case earlier this month in the House of Lords, that the full opinion, the one of March 7 2003, was "far from clear and unambiguous".[14] The convention is all that we are going to get for the time being, though the Government does say in the White Paper they are open to the possibility of legislation later, but let's accept it is going to be a convention, then I think the single most important thing for the House of Commons, and this Committee is the sharp end of the House of Commons on this, is to make sure that, unless there is very good reason not to, the full opinion on the legality of the war is given you, not some shrivelled inadequate summary, and the greatest single failing I think on the road to war of 2003 was not you here but the Cabinet, because they did not insist on seeing the full opinion, only a handful of them knew what it was, and they did not test out the shrivelled, inadequate version that Lord Goldsmith gave in the House of Lords, and that was the biggest human failure of all. I have said to this Committee before that Mr Blair's Cabinet was the most supine since World War II—that is it will be remembered, if I am writing the history, as "the supine Cabinet"—but that was the single biggest example of the price that was paid for their supineness, and you have to see if you can find a way of persuading the Prime Minister, and it will have to be him, to think again on this, and think again of the human pressures. If you are a Prime Minister you think in your head you have a special insight into the world and the dangers the world and the country is facing—Eden in 1956, Blair in 2003—but they are the last people in the world who are going to be in a fit state of mind to judge, I think, what is proper for Parliament to have and what not; it is asking too much for a human being who is in a state of hyper anxiety to do that, and I think that is the single greatest weakness in what the Government has brought forward. So I am with this Committee and would prefer a law, with all the caveats that are quite sensibly in the White Paper about emergencies and so on, but that is I hope what you will concentrate upon because that is the fault line beneath the war powers as proposed in this White Paper.
Q52 Chairman: I am really grateful for that; it is very helpful. I think it is probably true that the chief of staffs have prevailed in terms of setting their face against legislation, but I suspect they would be on your side, as they were, indeed, at the time of Iraq—
Professor Hennessy: They asked for the opinion.
Chairman: Absolutely, in pressing for the opinion, so I think you invite us to do something which I think will command interesting and wide support.
Q53 Mr Walker: Do you think Parliament should be more aggressive in asserting itself and demanding rights, not waiting for the Home Secretary or whoever, the Lord Chancellor—I do not know what it is now, it seems to change on a weekly basis—to come up with these great ideas? Why are we not generating these great ideas and aggressively pursuing them?
Professor Hennessy: I have always wanted you to be like George III, "George, be King", I have wanted you to have a greater conceit of yourself than you have had in the bulk of my lifetime. You have much more of one than when I first came to the House of Commons to see you in action in 1964, the last day of the 1959 Parliament—what a smug crowd they were—and for all Harold Wilson's white heat, they were pretty awful as well. You are much better than you were, I think Robin was saying that about the career Civil Service, Parliament is much less a supine body than it once was but you have a long way to go, and I do think you should come up with things and I think on Robert's very interesting point about what the constitutional settlement as a whole looks like, you can do that, for example. I cannot confirm this because it is only one source but, at the beginning of the 1997-98 process, when Lord Irvine, and you might get him here and ask him if this was the case, chaired the Cabinet Committees on Constitutional Reform—and did them very well; proper Cabinet Government there, if nowhere else—early on the Cabinet Office Secretariat said: "Do you not think we should have a White Paper which explains what the end state will be, how it all links together?" and he said, "I'll think about it", according to my informant and he came back—and you must ask him if this is true—and he said, "I have thought about your proposal and it is alright, it all does come together". "In what way, Lord Chancellor?" "In here", he said, tapping his formidable forehead. Well, great man though Lord Irvine was—not my favourite in terms of jokes but a very formidable person, I have a lot of admiration for him—that was not enough, and I think what we need, and you could do this, is you could pull together all the constitutional changes since 1997, blend them with this and say: "What do they amount to? What is the unfinished business?" and that would be a great service if you did that. As you know, I never come before you, Chairman, without suggesting another programme of work for you so I do not want to disappoint you!
Q54 Chairman: I am afraid I was Lord Irvine's PPS[15] at the time!
Professor Hennessy: I remember!
Q55 Mr Walker: Can I ask the other two witnesses what their view is on the role of Parliament in driving change?
Professor Blackburn: Yes, I agree. It is a cultural matter rather than a procedural matter, and parliamentarians should be more assertive. It is certainly true that the Select Committees are frenetic in their activity these days. I think you need to be quite careful how you do choose the subjects and do not spread yourself too thinly perhaps, and it is very important that the Select Committees work together. Having some Select Committees working in conjunction on the same subject matter together is quite a formidable influence, I think. In a sense it is a shame that yourself and the Constitution Committee came to different conclusions about war powers, for example, and that slightly detracts from the authority of both. So I think this is a cultural matter but a very wide cultural matter, of course. The excessive use of the Whips and management techniques by the Whips, with three-line whips on things that would never have happened 20 years ago, is very important to resist, but that is up to individual MPs collectively as well.
Q56 Mr Walker: But, there again, we have the ridiculous spectacle of the media suggesting that a PPS is a member of the Government and calling it a split. Traditionally, 30/40 years ago, a PPS was part of the payroll vote, and it suits the media to talk these sort of minor ructions up as if they are important, and they are not, but that is more of an observation than a question. Sir Robin?
Sir Robin Mountfield: I regard what you are doing now as one of the more important areas that Parliament can influence, what is in the Bill; but, secondly, to my mind it is the scrutiny of how the Civil Service works that is really important, and that is where this Bill needs to be improved in a number of respects. For example, the Civil Service Commission should be made to make an annual report on the operation of the Code, and you should be able to scrutinise them. It does not solve the problem but it gives you a specific opportunity to press these issues in a creative way.
Q57 Mr Walker: Professor Hennessy, you come across as a great fan of judges. There seems to be growing friction at the moment between the Government and judges, Parliament and judges, judges overturning—seemingly—laws passed by Parliament on, for example, deportation, asylum seekers, so on and so forth. How do you see this current concern resolving itself? We all seem to have a view on it as politicians.
Professor Hennessy: One of the things that really disturbed me, and I was fascinated by it, was the degree to which Tony Blair ran against the Human Rights Act which his Government had passed—I often got the impression he had not read it, certainly before it became law—and the judges have to go with what they have, and statutes conflict. We have a career judiciary that is not contaminated so that they are the ones without fear or favour who have to say that, and I do not want to be unkind to the political trade because you are very necessary and I love you dearly, but you get where you are, some of you, by mobilising prejudice more effectively than the competition; the judiciary does not. The judiciary are the sort of people—well, they are nerds. They are nerds in the public interest; they are fine-print people, and you have to have people like that. It is the same when politicians who are on the rocks, usually for their own faults, attack the BBC because it is "biased". Well, forgive me, but the last people in the world to detect genuine bias is your trade; that is what you are there for. So when people get cross with the judges it is an anthropological problem a lot of the time, and what is so intriguing for the older of us is that when we were young, and some of you here—I was not particularly—were on the centre left, or even a bit further left perhaps, in some cases, the judges could not be trusted because they did not like the working class; they did not understand them, and they were the bosses' tool which is why the Labour Representation Committee came into being. But now the people who laud and magnify the judges are the progressive centre left because they seem to be the last guarantor of liberty when the Cabinet gets another rush of blood to the head, and it has been one of the most interesting transformations in my lifetime of who is more disturbed by the judiciary than not. But, Heavens above, judicial appointments are very much part of this, but if that is ever tampered with that really is the road to ruination, and so many of the things we are looking at, including a clean and decent public service that is not contaminated either. It is like a clean water supply, you assume it is there until you know it is not, and you are, in effect, a kind of purification plant for these bits of the constitution, in this Committee, and it is absolutely vital that you should continue to be so, but the judges point is a very interesting one. When you think about it, ministers have a whole hierarchy of scapegoats when they do not get what they want. Quite often it is the senior Civil Service, and Robin as St Sebastian covered in arrows, then it is the wretched media, then it is the bloody judges, then it is backbenchers or select committees like you—I am glad to say that Robert and I are quite far down in the hierarchy of malice, academics are usually about no 6 scapegoat for their own failings, but that is often what happens when Home Secretaries really think they need to take on the judiciary. I think it began under the Conservative administration, I cannot remember the exact details, but was it not Mr Baker who was the first Home Secretary ever to have to deal with a contempt case? I may be wrong about that, but there was a great deal of bashing the judges going on then, by historical standards, and it is entirely to be regretted. I understand the factors that make for it but I think it is really quite difficult and I hope the judges stand firm. So, indeed, I am a fan of the judges—as I am of you lot. You do not look convinced!
Mr Walker: We must get you back more often!
Q58 Mr Prentice: Can I stick with you, Professor Hennessy and the war powers? You told us there was an abandonment of due process and you seemed to suggest that the Cabinet is just, well, a vegetable patch—
Professor Hennessy: That gives a false impression of vigour, actually. Vegetables grow!
Q59 Mr Prentice: These are very stunted vegetables. You talked about a full opinion needing to be available. Is there a full opinion? I tell you why I am asking you that. I remember a few years ago Sir Andrew Turnbull when he was Cabinet Secretary, and there was a ding-dong between him and Tony about the nature of the legal advice that had been presented to the Cabinet, and Sir Andrew said, "The six paragraphs"—or whatever it was—"is the full legal advice". He said that; it is on the record; I remember the exchange between Tony—
Professor Hennessy: That was before the full opinion had been leaked, if I remember.
12 Cabinet Office, The National Security Strategy of the United Kingdom: Security in an interdependent world, Cm 7291, March 2008, p 6 Back
13 `The Rule of Law, The Rt. Hon Lord Bingham of Cornhill KG, House of Lords, www.cpl.law.cam.ac.uk Back
14 House of Lords, Opinions of the Lords of Appeal for Judgment in the Cause R (on the application of Gentle (FC) and another (FC)) (Appellants) v The Prime Minister and others (Respondents), Wednesday 9 April 2008, Back
15 Parliamentary Private Secretary Back
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