Examination of Witnesses (Questions 60-79)
PROFESSOR ROBERT BLACKBURN, PROFESSOR PETER HENNESSY AND SIR ROBIN MOUNTFIELD
24 APRIL 2008
Q60 Mr Prentice: So the full opinion is—
Professor Hennessy: — the March 7 one which the Butler inquiry had to insist on seeing. They did want to show it to them and Robin Butler had to threaten to go public before they were shown the full opinion, and it leaked in the last few weeks before the last general election. So I am not sure if this Committee had the leaked version available to it when the Chairman got that—I do not want to suggest Andrew Turnbull is anything other than honest because he is a good friend of mine and also a straight man, but if you read the two opinions there is a world of a difference, as Lady Hale said this month, between the big one and the little one.
Q61 Mr Prentice: I do not want to take you down a blind alley but the argument at the time the "Cabinet" took the decision to go to war was that the Attorney General, Goldsmith, was there. He could take questions from Cabinet—
Professor Hennessy: But they only got the little opinion, and that was the problem. He spoke to the little opinion, as the Butler Report made explicit.
Q62 Mr Prentice: But my question is this, I suppose: what is the obligation on the senior Civil Service to tell it as it is to the Cabinet? I am not going to go through the history about this but papers were not circulated to the Cabinet because the person who chairs the Cabinet is the Prime Minister and the Chair decides which papers are circulated, so what obligation is there on the collective, the Cabinet, for the Permanent Secretary, the Cabinet Secretary, to say honestly what he knows?
Professor Hennessy: I think it is an absolute requirement of Cabinet Secretaries. There is no point having a career Civil Service on the Northcote/Trevelyan lines if it will not speak truth unto power at crucial moments, however inconvenient, and it was the Chief of the Defence Staff, Admiral Boyce, and Sir Kevin Tebbit, the Permanent Secretary, and the MOD who insisted on that legal opinion. Nobody else asked for it—not a Cabinet minister, not a Cabinet Office official. They insisted upon it after the chiefs of staff had had a discussion and General Mike Jackson said: "I have spent a great deal of time recently in the Balkans getting Milosevic behind bars in The Hague; I have no intention of occupying the next cell to him", and it was the chiefs of staff and the Permanent Secretary and the Ministry of Defence who insisted on an opinion—nobody else—and I do not think that is the way to run a central government, full stop, either as a Prime Minister or as a senior official.
Q63 Mr Prentice: But history would not repeat itself. Lessons have been learned, have they? Cabinet members have effectively apologised?
Professor Hennessy: Yes, they have, and this National Security Strategy is what the apology is about. Never again.
Sir Robin Mountfield: The Ministerial Code includes a provision that ministers are required to give due attention to the advice of impartial civil servants, along with other sources of advice. My view is that that should be a provision in this Bill, along with the obligation to observe the political impartiality of the Civil Service. The reason is that I believe one of the greatest threats to due process in government at the moment is not politicisation of the Civil Service but its marginalisation. I think the Iraq situation, as I understand it not having been there, illustrates that; some of the people who knew where the bodies were and were known to oppose the war were not listened to.
Q64 Mr Prentice: So either you are on side or you are frozen out?
Sir Robin Mountfield: That is my fear. I am not saying it happens regularly in the ordinary humdrum business of government, but I think in certain critical moments it is a real danger in the way the system is presently working.
Professor Hennessy: Only one official resigned, Elizabeth Wilmshurst, the No 2 legal adviser in the Foreign Office; none of the others resigned, and there is always that option. It is not for me to tell people to throw their hand in and resign; I was always trying to persuade you to resign on principle, Sir Robin—no, I was not, that is unfair, but it is interesting in that very few resigned over Suez. More resigned over Suez than over Iraq, but that is the ultimate option, and Elizabeth Wilmshurst did it.
Q65 Mr Prentice: And if we had had a few resignations from the Cabinet that would have changed the course of history?
Professor Hennessy: Yes. I am sure there were Cabinet ministers who did not believe a word of it, and did not believe in the war. Having been nice about the current Prime Minister, if the doubts I suspect he had in his head had been articulated in the autumn of 2002 that we cannot do this without a specific United Nations Resolution, matters might have been different—but he did not, did he?
Q66 Chairman: Robin, I am sorry we are going between issues here but it is inevitably the case, and I want to press you on why you think that Civil Service legislation is the appropriate place to put obligations upon ministers?
Sir Robin Mountfield: I know that is the position this Committee took when we were talking about a Civil Service Bill, but this is a Constitutional Renewal Bill whose main theme is really constraining the prerogative, and this is crucially one of the issues as far as the Civil Service is concerned where the prerogative in my view needs to be constrained. The current mischief is not, in my view, the will of civil servants to behave politically; it is the risk that ministers force them to behave politically. I am not suggesting this is endemic and widespread but it does happen, and it is important that we should be driving some stakes in the ground to limit the possibility of that happening in the future.
Q67 Chairman: But if we are doing something about the ability of civil servants to do something if ministers ask them to behave improperly, surely we are catching it at that end, are we not?
Sir Robin Mountfield: Yes, but it is a reciprocal obligation. If that were the case, why do you have a provision in the Ministerial Code?
Q68 Chairman: Because that is directed at ministers.
Sir Robin Mountfield: But it has no authority other than that of the Prime Minister.
Q69 Chairman: But, as Peter will tell us, it has developed in a typically British way to become now a kind of rule book, and woe betide a minister who offends against it.
Sir Robin Mountfield: Only if the Prime Minister of the day is willing to operate it in that way.
Q70 Chairman: Parliament and public opinion and the media have decided that it is a rule book.
Sir Robin Mountfield: If Parliament wishes to have a role in these matters it needs to have one; it needs to authorise those provisions and be able to scrutinise them. Authorisation and scrutiny run together; they are two sides of the coin.
Q71 Chairman: What is the view of the others on this?
Professor Blackburn: I have no view on that.
Professor Hennessy: I have always worried the Prime Minister had the last say on the Ministerial Code, but it is very difficult to find another system unless you have an outside person—well, you have an outside person now who advises. We went to the Comptroller and Auditor General to advise on these things because it was difficult for the Cabinet Secretary to do so. The person we have most to worry about in the British system of government in terms of excessive accumulations of power is the Prime Minister, and if the Prime Minister is the one who is the guarantor of the probity of the constitution at particularly difficult times, in the City that would be called "insider trading". In my world it would be students setting their own exam paper and marking it. But because it is here we do not seem to worry—well, we do, but the world does not seem to worry much that the Prime Minister has the last say on what is right, and the qualities that make people Prime Minister are not necessarily at the higher end of the scale of fastidiousness that is required for that, so I have always worried about that. John Major's great benefit was making Questions of Procedure for ministers, as it was then called, public, and it featured in the Lamont case pretty quickly, his housing problems, which we do not need to revive, and the press then made it paragraph 4 in every story about ministerial behaviour once it had been made public, so the person who made the most difference was John Major because until then it was classified for thirty years. We were the only system in the world where the guidelines for ministerial behaviour had a 30-year time lag put on them; in those days we did not see anything ironic about that because we were a secretive nation. At least we have come a long way since 1992, but I still worry about it.
Q72 Chairman: What about Robin's point about putting obligations on ministers inside the Civil Service Act?
Professor Hennessy: Yes, the bit in the Ministerial Code. He is absolutely right about respecting the neutrality of the Civil Service; it has to be in there. Again, it does not apply to all ministers but a lot cannot believe, because they do nothing else except be politicians, that you can be very interested in government and public affairs without being excessively partisan. It is particularly important that in terms of incoming governments, particularly after a long period when one party has been dominant for a long time, which has been the modern way, even the more balanced ministers suspect that the officials are in the pockets of the outgoing rivals, and then it is a long learning curve, and something that can help guarantee that the incoming set of ministers does not think they are the opposing side's supporters in private would help. When civil servants say: "It is not as easy as that, Minister", the easiest thing is for a minister to think to himself in the early days, when they are flush with enthusiasm and have what they call a mandate, as they conceive it, "This is not just obstructivism; he is a Tory", or "He is Labour", and one of the problems in 1997 after the long period of Conservative rule was that a lot of MPs and new ministers seemed to believe what they read in some newspapers—not all—that Mrs T had politicised the senior Civil Service. In fact, I think only two senior civil servants were politicised out of the whole lot of them but you will remember, Robin, how many of them came in thinking that you were a closet Thatcherite, which must have brought you intense personal grief, I suspect!
Sir Robin Mountfield: To my knowledge, incoming governments since 1964 have feared that the Civil Service has been captured by their predecessors. I remember in 1964 I was the private secretary to my then Permanent Secretary, who was a man of known left-wing tendencies, but he said to me, "You know, they hate us", meaning the incoming Labour Government hated the Civil Service because they had been captured. The same thing happened in 1979 and in 1997, that there was a fear by the incoming Government that the Civil Service had been politicised. Now, nobody can be made virtuous by Act of Parliament, but I do think some provisions can help to limit that by putting stakes in the ground.
Q73 Chairman: Sorry to detain you on this, but this is interesting. One of the lamentations you hear from ministers is that civil servants do not quite understand the politics of all this, and we have had Michael Bichard in front of us who is essentially signed up to this proposition, which is that basically a civil servant just needs to be far more politically acute than they traditionally have been, and far more in tune with what the politicians are wanting and saying. Is that not fair?
Sir Robin Mountfield: It is not my experience. Indeed, on the contrary. In my experience senior civil servants have pretty well-attuned antennae on political matters, sometimes almost excessively so, so I do not regard that as a serious problem. But in any case, we have more parliamentary secretaries and junior ministers in this country than anyone other than the Kenyan Government—
Q74 Mr Walker: Far too many.
Sir Robin Mountfield: —and we have special advisers as an alternative route, and to my mind it is the junior ministers and other ministers on the pay roll answerable to Parliament who are the right way of introducing political expertise into the system.
Professor Blackburn: Can I offer one observation about the Ministerial Code? One of the problems with the Ministerial Code is it tries to do too many things. It is a hybrid document, or more than a hybrid document. It covers the terms and conditions of the job, including financial interests; there are then statements of high constitutional principle about accountability to Parliament, and those really would be better in parliamentary resolutions or a separate document; and then there are petty procedural matters about how people should behave with regard to Cabinet meetings. It is also, since it was published, somewhat of a glossy brochure as well: "This is how we operate". I think there is a case for dismantling these different purposes into different documents.
Chairman: The Government believes it has done some of that in the latest version of it. The Committee, by the way, is about to get another report on the Ministerial Code, picking up this question of independent investigation.[16]
Q75 Julie Morgan: I wanted to ask you your views on the people's attitude to all these matters. If you go back to the Iraq war, the Cabinet took the decision to go to war without the full legal advice. Parliament voted for it, but the public, or the people who speak to me, seem to think that their views were not taken into account at all. What can we do, or what can these proposals do, to try to address that gulf that does exist and, I think, has been increased, particularly since the decision to go to war in Iraq?
Professor Hennessy: Interesting. I think the subsequent election is the only way. Some calculations suggest Labour lost 40 seats because of the Iraq war, but it is very difficult to be precise about that, and some people think the leaking of the Attorney General's opinion with 10 days to go, a chunk of it and then the Prime Minister giving up the ghost and saying, "You can have the whole lot", do you remember, at his press conference, contributed to that. It is very hard to build the people, as it were, in the run-up to it because the people refresh the House of Commons and then they rely upon you. It is a very important question, though. If Tony Blair was here—he might have popped in if he was unveiling his pictures, as he was yesterday—he would say, "It is nerd time again, the people aren't interested", but I think the people care deeply about due process. One of the ways we imagine ourselves as a nation, and it is not a verb I would normally use because it is the sort of word sociologists use so I do not like it very much, is as "the due process nation". There are very few due process nations in the world—Canada is another one but they are very few and far between—and if people think something improper has gone on, and I do not just mean allegations of sleaze but in terms of sensible careful, rational government, they do not like it. It is good that the public is still shockable if they think ministers, MPs, or officials are falling beneath certain standards, and the moment they cease to be shockable we should worry. So your question is very important but it is very hard to think of mechanisms whereby anything plebiscitary could be introduced ahead of the conflict; it is just not like that. You have to rely on the various working parts of the constitution to do what the constitution requires them to do, whether it is senior officials, chiefs of staff, Cabinet ministers, Attorneys General, or MPs, because when you put them all together they are our last best hope, are they not? I really believe that.
Sir Robin Mountfield: My interest in this really is in one aspect of the extent to which the contents of the Code are prescribed in legislation. Your own draft included some provisions about how civil servants behaved in relation to members of the public. After all, nine tenths or more of the Civil Service never see a minister, they are engaged in service provision, so impartiality, integrity and so on in relation to them specifically seems to me an important feature that could be identified on the face of the Bill as something that needs to be provided for in the Code.
Professor Blackburn: Yes, I would agree with those points. One point I would mention is that I think the law should be intelligible on these matters; that really does matter. Symbolically it is important and people, if they want to find out for themselves what the principle is about a lot of these Crown prerogatives and powers, should be able to see them easily for themselves. I do not think this Bill achieves that terribly well though it is a creditable Bill in its objectives, as I said at the outset. For example, if you had a simple statement, "A declaration of war must be authorised by Parliament" or "treaties may be ratified or approved only under an enactment", as in the French constitution, or if you had another provision which read: "No treaty concluded by the Government shall be binding on the United Kingdom unless the treaty is laid before Parliament and, within three months after it has been so laid, each House of Parliament by resolution authorises the Government to give consent to the United Kingdom to be bound as a party to the treaty", I would submit that is much more intelligible than the type of drafting you see in the proposed legislation at present. Incidentally, on that point, and I do not think we will be getting round to this, insofar as the Bill deals with Parliamentary approval to treaties I do wonder whether the 21-day period is now too short if there is going to be any serious examination of draft treaties.
Julie Morgan: We have all said that these are very important changes and very welcome, and it would be good if the people were talking about them and discussing them in a way that maybe they are not.
Q76 Chairman: You want a "we the people" constitution. That is what you are after?
Professor Blackburn: Not necessarily—
Q77 Chairman: Not a George Formby constitution!
Professor Blackburn: —but I think things have got to such a state that it may only be possible to join them all up through a comprehensive survey of the constitution. There are bigger reforms taking place at the moment. To some extent the House of Lords reform, I think, has been stymied by lack of clarity over what its role and powers are, but those could have been fused in with other developments that have taken place, devolution, and possibly having special powers over treaty-making. But no special roles have been carved out for the Upper House, so it remains just a sort of talking shop, revising chamber, very useful for giving opinions, for the benefit of the House of Commons, etc. To give another example, as it seems we will not be discussing House of Commons' approval to general election dates, my own view is that there would be some merit in keeping Parliament in permanent existence, and there should be a constitutional Act which provided for that. Now, that would be quite useful if you thought, for example, that one of the best ways of reforming the House of Lords was to have a rotating system of election, and there is a great advantage in that because you reduce the problem of rival mandates. Hopefully we are not going to have the ghastly secondary mandate, which I fear could be on the cards, because that would actually increase the power of the Executive over the second chamber. But if you thought rotating elections would be a good idea, it would make it easier if Parliament is in permanent existence. Another ancillary benefit of that, incidentally, would also be that you would end this odd hiatus of about six weeks when no Parliament is in existence during a general election campaign. So all I am saying is you could tie up dissolution affairs with several other advantages at the same time. Now, you might not agree with all of those, that is just an example, but there are lots of other examples where constitutional changes could be interlocking with one another.
Q78 Chairman: You remind me of an Anglo-German conference I went to in 1997, when the Government just came in on the Government's constitutional reform proposal, and the German professor got up and said: "But where is the plan?" and we do not really do plans, do we?
Professor Blackburn: It is easier to say in a constitutional statement clear matters of principle and then deal with the minutiae in acts of Parliament elsewhere, or another way to approach these reforms, incidentally, would be to have some clear statement of general principle like "Treaties must be authorised", et cetera, and then deal with the detail in standing orders.
Q79 Jenny Willott: The point that you just raised around Parliament being in existence and so on has in some ways been dealt with in the devolved authorities. Julie and I are both Welsh MPs and the Welsh Assembly members are members of the Assembly up until the day of the election itself, and they remain Assembly members all the way through the election campaign; they also have fixed-term Assembly periods, which I think would be much more sensible, but there is also a link with something that was said earlier when we were talking about legal advice and who owns legal advice and who has the right to request it and so on. There was a massive row in the Welsh Assembly a number of years ago before the latest Government of Wales Act because it was set up in a different system and the Executive and the Assembly were not separate bodies legally, they were one, and it was very unclear to whom responsibility of the legal advice was owed, and there were a couple of instances where I believe the Assembly members and the Executive had different views on who should be entitled to access the advice and who should be able to have the full information, rather than just potted advice afterwards. That has all now been cleared up and they have done it the way Parliament has, so that the legal advice goes directly to the Executive and the Assembly members themselves do not have the right to ask for that or whatever, so it is interesting that there was an example within the United Kingdom which was the sort of model you were talking about, whereas now they have reverted to the old model.
Professor Hennessy: To say that maybe you could force the Government's hand is a little, perhaps, inflammatory use of language but if they will not move, if you recommended that certainly on peace and war the Attorney's opinion should be, as Lord Bingham said, for the country and for Parliament, that is the client, and they do not take any notice of you, why not suggest that the House of Commons appoints its own small legal staff, so you can have your own equivalent of a law officer who could advise Parliament in these circumstances? There are plenty of good international lawyers out there who, I am sure, would be more than glad to help, so why not do that? Find your own independent advice, and make them officers of this House in the way that the Comptroller and Auditor General is.
16 Public Administration Committee, Seventh Report of the Session 2007-08, Investigating the conduct of ministers, HC 381 Back
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