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There is an enormous amount to do in terms of the centralisation of power, but for now will the Government not at least commit to some small concessions? One thing they could do is implement the original intention of the Sustainable Communities Act 2007, which was that local government would be able to require central Government to declare what central Government spend in a local area so that negotiations can then take place on what should be done with that money. I gather that what is currently happening is that central Government interpret that Act as meaning only that central Government tell local government what local government are already spending, which of course completely undermines the
whole process. Cannot the Government simply reverse their control-freak stance-which they revealed yet again last week-on the internal governance of local authorities which forces them to choose between a limited range of unsuitable Whitehall-based Government structures?
The draft Bill included extensive provisions on removing the power of the Attorney-General to control decisions about particular cases-about whether a particular person should be prosecuted or not. In my view, it made unacceptable exceptions to that idea by talking about a national security exemption, but even this limited concession has now disappeared entirely from the Bill before the House tonight.
The Secretary of State has not really explained what has happened. The current situation is entirely unacceptable, and I notice that the Parliamentary Assembly of the Council of Europe is now of a similar view. It is unacceptable for a Government Minister-a politician-to have the power to undermine the prosecution of, or even to decide to prosecute, individuals in particular cases. We all know about the controversy regarding the BAE Systems case and so on, but I do not want to discuss individual cases; I just want to talk about the principle of whether a Minister should have that sort of power. The hon. Member for Cannock Chase mentioned the separation of powers, and this seems to me the most obvious instance where the principle of the separation of powers is being violated. Such decisions should be exclusively for professional prosecutors.
Mr. Straw: The hon. Gentleman raises an important issue, which I have always seen as one of fine judgment and balance. We asked both Houses to establish a Joint Committee on this Bill-that was in addition to the specific investigations being carried out by the Select Committee on Justice, the Public Administration Committee and others. The Joint Committee on the Draft Constitutional Renewal Bill, which involved both Houses and all parties, concluded that the legal and political role should be retained for the Attorney-General. It also said:
"Given our conclusions in Chapter 3, we question whether there is a need for legislation in respect of the Attorney."
I accept that we must keep this matter under review, but I hope that the hon. Gentleman will at least accept that the reason why what was included in the original draft Bill is not included in this Bill is that we accepted a recommendation from the Joint Committee.
David Howarth: The Joint Committee was far from unanimous on that point, and the Justice Committee report clearly went the other way.
Mr. Tyrie: As a matter of fact, what the hon. Gentleman said is a big understatement. The Joint Committee had to produce a minority report, making it clear that a sizeable proportion of its members agreed with the reports produced both by the Select Committee on Constitutional Affairs and the Justice Committee. They both concluded that the current arrangements for the Attorney-General, whereby he has both a political and a prosecuting role, are unsustainable.
David Howarth:
I am grateful for the hon. Gentleman's intervention, because that is precisely what has happened. I do not think we should give way to a Joint Committee
report that is plainly more reactionary than the centre of gravity of opinion in this House. It is possible to design arrangements so that there is a supervising Minister who has some say in overall policy on prosecution, but the idea that individual cases can be influenced by Ministers strikes me as being beyond the pale.
Let us consider the civil service aspects of the Bill, on which, like the Conservatives' spokesperson and the hon. Member for Cannock Chase, I welcome the basic principle. There is, however, a minimalist feel to the way in which the idea of the "civil service Act" is being implemented in the Bill. What has happened to the idea, mentioned earlier in the debate, that special advisers should not be able to exercise Executive power and instruct civil servants? The Secretary of State says that there might be exceptions to that-I cannot think of any such circumstances that have led to good outcomes in the past. Even if there are exceptions, should not the Bill put in place the presumption that special advisers should not be able to do those things and provide for an open, transparent procedure-not an Order in Council-to make the exemptions clear and open in Parliament? Why should only selection into the civil service from the outside world-this is how I read the Bill-be subject to open and fair competition and merit? What has happened to the idea that promotion within the civil service should also be exclusively by merit and open competition? On a lesser but still important point, what has happened to the provision in respect of GCHQ, which was included in a previous draft of the Bill but has now been lost? Finally, and crucially, why does the Bill contain no legal duty on Ministers to respect civil service impartiality?
The treaty ratification aspects of the Bill have been discussed extensively, but the conclusion that I have drawn from examining the Bill and listening to the debate is that what the Bill provides for is almost purely symbolic; it is not a real change. That is because the Government-this is the central issue with which the Select Committee on Reform of the House of Commons, which the hon. Member for Cannock Chase chairs, is grappling-have a complete stranglehold on what we get to vote on in this House. If a purely negative procedure is to be used in respect of treaties, this House will never get to vote on a treaty when the Government do not want us to do so. What the Bill says about the House of Lords is that the Government can simply, by fiat, ignore what it says on a treaty. In any case, clause 23 contains a general get-out clause allowing the Government to evade the entire proposed structure.
Mr. Straw: It was my experience as Foreign Secretary, when I regarded it as offensive to this House and our democracy that Parliament had no formal, proper role to agree or to veto treaties, that led to this part of the Bill being laid before the House. This provision is not, in any sense, supposed to be symbolic. We are, of course, open to arguments as to how it could be improved, but I should say that never before has there been-as there will be if this Bill is enacted-power for this House properly to veto a ratification if it so judges.
David Howarth:
I am glad that the Secretary of State is open to further suggestions-the obvious one is to move to use the affirmative system, as opposed to the
negative procedure, in this House. That would at least ensure that a vote took place in this House, even if a debate did not.
The Bill is very disappointing on prerogative powers. The document that the Government issued last week is possibly the most complacent that I have ever seen come out of government. Basically, it lists the prerogative powers that are known to exist and then says, "Apart from one or two that the Government have already covered, there is nothing wrong with the present system and it is a very good idea that Ministers should have all these powers." It simply makes a mockery of the Prime Minister's promise to entrust
"more power to Parliament and the British people."-[ Official Report, 3 July 2007; Vol. 462, c. 815.]
Like the Secretary of State, I would have much more strongly preferred to see something concrete about war powers in the Bill, rather than merely a proposal about consideration of a draft resolution of the House. That was rightly described by the Public Administration Committee as leaving
"too much discretion in the hands of the Prime Minister."
The Bill contains nothing about the Dissolution of Parliament and nothing about many of the other powers listed last week. Crucially, it contains nothing about the power to appoint the Prime Minister, which remains in the mysterious official channels of ways and means. That is not acceptable in modern democracy; this House should openly elect our Prime Minister, after a general election. The prerogative is simply arbitrary power dressed up in mediaeval clothes, and it is a means for the Government to avoid democratic scrutiny. We should be discussing a general provision to shift all prerogative powers on to a statutory basis or to this House, and the Government should have to argue for any exceptions to that.
May I just briefly mention the public order provisions, because I was disturbed by part of the debate about that earlier? I am happy that the provisions that exist now on protest near Parliament are being repealed, but the Bill replaces them with a regulatory regime that could be abused. I am thinking about, for example, the power at large to confer discretions on senior police officers and the power to impose a limit on the maximum number of protestors without there being any limit to that power. When this Bill reaches Committee we will need to examine carefully what those provisions are meant to do and, if necessary, restrict their remit.
On the judiciary, as the Secretary of State said, the effect of the Bill is to take the Prime Minister out of the loop on judicial appointments. I suppose that that is also largely symbolic, since the Prime Minister is replaced with the real power in the land-the power behind the throne all the time-the Lord Chancellor.
On human rights, I have no objection to tidying up the anomalies to do with the devolved Governments. However, if the Government are in a frame of mind to tidy up the Human Rights Act 1998, I urge them to consider not only the Bill promoted by the hon. Member for Hendon (Mr. Dismore) on foreign civil servants, which he has mentioned before, but, rather more importantly, his Bill on human rights, which would ensure that Government contracted-out services, which are only technically in the private sector, are included in the scope of the Human Rights Act.
The financial provisions of the Bill on the Comptroller and Auditor General and the National Audit Office are mostly harmless, but there is nothing in the Bill to deal with the ludicrous lack of scrutiny to which the Government are subject in this House before they spend public money. Our method of scrutiny takes place almost entirely after the fact. We in this House have less say in advance of Government spending than a parish council does about what that council spends. Since the reality of politics is that expenditure is policy and policy is expenditure, we are reduced to merely a spectator in government. It seems to me that serious reforms are required to the way in which Parliament relates to the Government on money issues. The Bill, as it does with so many other issues, simply tinkers lightly with the far edges of a very serious problem.
A Second Reading debate is supposed to be about the principle of a Bill, and the principle of this Bill appears to be to do as little as possible about as much as possible in a limited way. The big issues that face us about the legitimacy of the political system and the future of our democracy have been ignored. If I am right that we are already in a constitutional moment-in a serious political crisis-that is simply an inadequate response. I urge the Government to think again about what they want to achieve through the Bill and about whether it is right to introduce such a pathetic little Bill at this stage and carry it over into the next Session. It might be a better idea to take the whole thing away and to return in the next Session with a serious attempt at reform.
7.3 pm
Keith Vaz (Leicester, East) (Lab): It is always a pleasure to follow the hon. Member for Cambridge (David Howarth). I do not share his pessimism that we are in a huge political crisis. Although aspects of the public's confidence in this House and the conduct of its Members have been affected, I do not think that it is a huge constitutional crisis. I hope that by the end of the debate we will have cheered him up and shown him that some good work has been done in the past 12 years.
I begin by declaring an interest as a non-practising barrister.
This is the first debate on constitutional affairs since the Minister of State, Ministry of Justice, my right hon. Friend the Member for North Swindon (Mr. Wills), announced that he will step down at the next election. It is right to pay tribute to him for the work that he has done in this area of policy. He has always been extraordinarily passionate about constitutional affairs. I was delighted when he chose Leicester as the first city to visit on his roadshow. I am not sure how many other places he visited- [ Interruption. ] Lots, he tells us. It was great to have him in Leicester and I hope that it gave him a flavour of the willingness of the people of Leicester to engage in this great constitutional debate.
The Lord Chancellor is absolutely right that this has been a breathtaking 12 years of great changes to our constitution. We have seen devolution and the creation of the Supreme Court, as well as changes to many other aspects of constitutional policy. The Government should be commended for what they have done. However, I am a little disappointed by the Bill-a disappointment I share with the hon. and learned Member for Beaconsfield (Mr. Grieve). I had expected, as the Bill has such a
grand title, that it would have more to it than the measures that the Lord Chancellor told the House about in his speech. It is like opening the fridge on a Monday morning and finding that all the best bits have gone. Perhaps we have legislated our way into constitutional history and there is nothing left to do, but I had hoped that there would be more in the Bill, because there is still more to do. Perhaps, as we are only five months away from a general election-as fixed a term as is possible, because we know that the election will happen next year-the Lord Chancellor feels that he should keep his best bits for the manifesto and for the fourth term, should the electors of the United Kingdom re-elect this Government, as I hope they will.
It is right to pay tribute to all three Lord Chancellors in this Government-to Lord Irvine; to my former boss when I was a Parliamentary Private Secretary at the Attorney-General and Solicitor-General's Department, Lord Falconer; and to the current Lord Chancellor. They have been serious about the need for reform and change, and it is important that we recognise that although the Bill might not be the Bill that we would have liked at this stage, it is part of that process.
Let me pick up on two or three aspects of the Bill. I hope that the Lord Chancellor will follow it through in the spirit in which he introduced the Second Reading debate. I have known him now for 30 years, and I know that when he says that he is willing to engage in debate on issues he will do so. The way in which he has dealt with interventions from right hon. and hon. Members and from Front Benchers shows that he will be willing to engage in such debate in Committee.
I was interested by the suggestion proposed by the hon. Member for Cities of London and Westminster (Mr. Field), which appeared to have come from a pamphlet written by the hon. Member for Chichester (Mr. Tyrie), whom I have always regarded as one of the cleverest Members of this House. If he has written a pamphlet about the need for temporary peers, it will certainly be worth reading, and I shall rush off to the Library to do so. Let me take his pamphlet at face value, as it was described by the Lord Chancellor and by the hon. Member for Cities of London and Westminster. Its intention is to ensure that we appoint peers for a short period, whether or not they serve as Ministers. Such a provision should not be limited to people who serve as Ministers of the Crown; it should extend to those in a particular area of expertise, who could be appointed for a couple of years, as it would be unfair to put them in for a month and hope that they can master the intricacies of the way in which the other place operates.
I fully support the principle of temporary membership, especially as there appears, as the hon. Member for Cambridge has pointed out, to be no great difference among the three major parties about the need to make the House of Lords more democratic. I am not quite sure where we are on the percentages, but our position is that the other place should be almost wholly elected. I am not sure of the Conservative position, but I think that the Liberal Democrats are in favour of a wholly elected upper House. Given that there is not that much difference, and accepting what the hon. and learned Member for Beaconsfield said about our not being able to legislate in a day, the idea of temporary peers is a good one, especially if they are brought in to serve in a Government for a particular reason.
There is no reason why people should be in the other place for life-under the old terms of what life should be-if they are there for a specific purpose. That is why I welcome the proposals in the Bill to allow peers to resign. I do not think that there is a hidden agenda about any particular member of the Government or of the other House, but surely it must be right for a peer who wants to resign and to contest an election to the House of Commons to be allowed to do so. I am not clear whether that would affect the next general election. Perhaps the Minister of State, when he winds up, will be able to tell us. However, it would be pointless to introduce a Bill that allows peers to resign but then not allow them to do so and contest the next general election, if that is what they choose.
My second point has to do with judicial appointments. I take the Lord Chancellor's point that removing the Prime Minister from the process would be a technical change, but I have been here long enough to know that the word "technical" can be used about matters that are a little more significant than that. I am not certain that the present Lord Chancellor has been in a position to make a recommendation to the Prime Minister, or whether the president of the Supreme Court was in place before my right hon. Friend took over, but I cannot believe that any serving Prime Minister would have told any of the past three Lord Chancellors, "I'm sorry, but I cannot accept your recommendation." Certainly, I cannot believe that the current Prime Minister would say to the present Lord Chancellor, "Sorry, I don't like your choices for president of the Supreme Court, or for the deputy president and other members. Please let me have some other people to choose from."
I am worried that, once the selection process is complete, appointments are merely rubber-stamped. I do not think that they should be, as the appointment of these very senior judges must be accountable to Parliament. I served on the Constitutional Affairs Committee under the enlightened leadership of the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith). He and I, and the hon. Member for Chichester, were very keen to make sure that we had the judges in on a regular basis.
Yesterday, we saw how the pre-appointment process in respect of the Children's Commissioner panned out. I am not sure how that process might have affected the appointment of the president of the Supreme Court, but I am sure that at some stage he would have come in to answer questions from members of the Constitutional Affairs Committee.
I am not saying that I want to go back to the previous system, in which one man or woman-a man, in the case of the present Lord Chancellor-selected every judge, tribunal president or magistrate. However, our current system has not impressed me with its ability to open up the judiciary in terms of diversity and gender, so I am glad that the Lord Chancellor has set up his review to look at how the Judicial Appointments Commission operates. I am glad too that the Opposition spokesman, the hon. and learned Member for Beaconsfield, has said that he supports the review, because it is important to see how the JAC has worked.
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