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20 Oct 2009 : Column 844

There is another fact about the civil service which worries me: civil servants have tended to be dominated by the prevailing ideology of the past 20 or 30 years. When I was a student many years ago, I met a former senior civil servant who was a university lecturer. He said that in his day there was a genuine debate inside the civil service about economics, and if policy changed there were always civil servants around who were schooled in an alternative view, and they could put it into practice. That is not the case now. The Treasury was at fault in not seeing the recent crisis that occurred. I hear very little criticism of the Treasury, but I think that it was at fault. If somebody had been ringing the alarm bells, we would not have got as close to the cliff edge as we did. Perhaps I have a dream that there was once a golden age for the civil service when it was dominated by people of good will-career civil servants who were not at all tainted by the interests of money outside, and had open minds.

Another fact about the civil service is that it is, in all things, wise to be able to discuss one's view with someone who opposes them. In this Chamber we have an enormous range of views, and every time we put forward a view it can be challenged. Someone who surrounds himself with people all of whom agree with him, or eliminates from his office anybody who disagrees with him, will finish up making mistakes. That has happened in the past. An example that has been put to me is that of Nigel Lawson, as Chancellor, pushing the exchange rate mechanism strategy. Apparently he did not want people who took an alternative view, and surrounded himself with those who supported the ERM strategy. That was a catastrophic mistake that went badly wrong; I suggest that it was even responsible for his party's loss of the general election in 1997. It was the folk memory of the disaster of the ERM strategy that destroyed the Tory Government more than anything else. If Nigel Lawson had had around him people who took a strongly different view, he might not have made that mistake. I like to think that our civil servants will be strong enough to welcome alternative views and at least to have a debate about major matters of policy.

I have another concern, about the Comptroller and Auditor General-but excuse me, Mr. Deputy Speaker: I have a sore throat and a cold, and I do not think that I shall be able to continue for much longer because of my mild indisposition. Having made some of the points that I wished to make, I will save the rest of my remarks for another occasion.

7.41 pm

Sir Alan Beith (Berwick-upon-Tweed) (LD): It is always a pleasure to listen to the hon. Member for Luton, North (Kelvin Hopkins), even when he is struggling with a sore throat, from which I hope he soon recovers.

Before reading the Bill, I had a look at the explanatory notes-I usually do it the other round-and found to my surprise that they were full of aspirational comments from the Green Paper of July 2007, stating that the background to the Bill included the Government's goals

That all sounds very fine, but it does not seem to have a great deal to do with the Bill that we now have before us. I appreciate that that Green Paper also related to some of the other things that the Government have done. I celebrated one of those with them only last Friday with the opening of the Supreme Court-a happy occasion. That is an important symbolic change that also has some practical significance and one that I very much welcome. That measure was introduced only after my Committee, the Justice Committee, had persuaded the Government to get it right following the back-of-an-envelope job with which they started, but all credit to them for carrying it through.

When I looked from those grand aspirations to the Bill, I saw a Bill that had first been stripped of some of the important issues that were raised in 2007, such as the role of the Attorney-General, and seems even slighter when set against the Prime Minister's statement on the constitution in July this year. It represents a distinct change of atmosphere. I was struck by the Secretary of State's quoting the report by the Joint Committee on the Draft Constitutional Renewal Bill and indicating that there was significant opposition in the House of Lords to the proposals to change the precise status of the Attorney-General. I do not know whether his experience compares with mine, but I find that in discussions in the other place one encounters the trade union of former Law Officers, who find it difficult to accept that there should ever be any change in that position. They are rather like the Lord Chancellor in "Iolanthe":

In particular, members of that informal trade union believe that any change in the position of Attorney-General casts doubt on the ability that they themselves exercised to draw a proper distinction between their political and legal roles-that it casts doubt on their integrity. Of course, it is nothing of the kind-it is a consideration of what would be a proper system for the future. Nevertheless, that seems to be a pretty powerful body at the other end of the building.

The Bill fails to meet the objectives set out in the Prime Minister's statement. Let us start with the House of Lords. The hon. Member for Chichester (Mr. Tyrie), who is a valued member of the Justice Committee, advanced his own interesting proposal, but what we are in danger of living with for many years to come is not what this House voted for-a predominantly elected second Chamber-but an appointed Chamber in which more and more people are appointed and all new Governments carry out a rebalancing by appointing many more peers to ensure that the Chamber is not overwhelmed by those from the previous Administration. The hon. Gentleman quoted the very high figure of 300-odd peers appointed under the present Government. The Prime Minister has himself appointed no fewer than eleven peers to be Ministers, many of whom have since given up that role but still have the position of legislator for life that membership of the House of Lords confers. It now looks as though we will have a long continuation of appointment, possibly moderated in the way the hon. Gentleman suggested. There is
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merit in his proposal, particularly if it is possible that a new Government, of whatever kind, might-because nothing had yet been done to change the Lords- have to make some initial appointments.

An alternative solution to the problem is to allow Governments to have a certain number of Ministers who are not a Member of either House but who can be questioned in either House. We already have the problem that some of the most powerful Ministers in the Government, such as the Business Secretary, Lord Mandelson, cannot be brought into the Chamber of this House to be questioned, although they can be brought into Select Committees. There is no reason why we should not make arrangements for a small number of Ministers, whether from the Lords or not from either House, to be questioned in this Chamber.

I have not made up my mind to oppose the proposal by the hon. Member for Chichester, but my worry is that it would give a spurious legitimacy to appointment for potentially quite a long period and further delay the reform that is required-the creation of a predominantly elected second Chamber. I suspect that he must have been influenced by hearing about leaders in his own party starting to hand out their own future peerages. We even know who some of them will be, if the Conservatives get the opportunity to create them. If we are to believe what we read in the press, serving officers still receiving their pay in Her Majesty's forces-in the case of Sir Richard Dannatt-are being told that a peerage will be theirs. In respect of the House of Lords, the Bill, whether or not amended in the way that the hon. Member for Chichester suggests, goes nowhere towards meeting the Prime Minister's aspirations.

The Bill does not advance the aspirations about rebalancing the relationship between the Executive and Parliament. I agree that it is right that Parliament should approve treaties, but let nobody suppose that in most situations that will not mean the Government of the day winning the support of their own Members to ensure that a treaty is ratified. The Bill does not affect the things that severely unbalance the relationship between the Executive and Parliament now. Even in the workings of Parliament itself, so many things need to be attended to. I sincerely hope that those matters will be addressed by the Public Administration Committee, chaired by the hon. Member for Cannock Chase (Dr. Wright), which plays a significant part in this process.

In the Justice Committee, we feel strongly that there are crucial things to be done. The control of the Order Paper by the Executive means that what this House discusses is effectively decided by the Executive. The dual role of the Leader of the House in being the main channel for House business, yet at the same time a member of the Executive, is not the way in which most legislatures would run their affairs. The House itself has no mechanism for introducing effective motions relating to business and the timing of business other than through the Leader of the House. The House itself is not making the decisions about how the Government's business should be dealt with. The Government are entitled to bring their business before the House and to have a means of ensuring that they are not frustrated by delay. However, the House should have the power to decide what are the most significant parts of that business and how it can be effectively debated, as well as to say, "We need more time to deal with this Bill even if we have to sacrifice some time on another Bill." At the moment,
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the House does not have that power. That is not to anyone's benefit, least of all those who have to work with the legislation that the House passes.

If anybody thought that the Government, in introducing the idea of confirmation or appointment hearings, had any intention of rebalancing the relationship between Parliament and the Executive, they will have been disabused of that notion by the discovery that on a rare occasion when a Committee has said, "No, we don't like the idea of this appointment", the Executive have replied, "That's very interesting, but we're taking no notice whatever." Nothing about the Bill or the measures surrounding it will rebalance the relationship between the Executive and Parliament, so it totally fails to satisfy the Prime Minister's aspirations.

What about the decentralising of power to local government? I see no evidence that the Government are prepared to take many steps in that direction or that they have accepted the fundamental philosophy required to so do, which is that local authorities in different parts of the country can do things differently and frame different targets and objectives instead of having them set by central Government. That is an issue for all the parties to consider, and it is part of my party's philosophy to a significant extent. Even we have to challenge ourselves from time to time and ask whether we are abiding by the philosophy of recognising localism.

I am convinced that the Conservative party has not absorbed a point that had a certain resonance in Conservative circles in times past-the importance of local decisions, locally made. The ideas that the party is currently putting forward are not backed up by a real philosophical commitment. Whenever anybody uses the expression "postcode lottery", I have to say, "Just a minute. We are bound to have differences between postcodes if we genuinely allow local authorities to make different decisions and make them democratically accountable for doing so." I challenge that term whenever I hear it. Of course people are entitled to campaign that their area should get what another area is providing, but in the context of different areas making different choices among competing priorities.

The Prime Minister has raised the issue of electoral reform and talked about a referendum on the alternative vote system. Indeed, the Government commissioned a substantial piece of work about the details of electoral reform, which produced a good, objective statement about various kinds of electoral system. It was one of the more objective things that I have seen come from the Government on the subject. However, none of that indicates any real progress or commitment. We will not rebalance the relationship between Parliament and the Executive if Governments can, for most of the time, rely on a significant majority in this House that is not reflected in votes in the country. The Prime Minister has also mentioned a written constitution, which can cover a wide range of possibilities and would be a major undertaking for this country.

Perhaps even more significant are the issues that the Prime Minister has not mentioned and are not in the Bill, but are fundamental if we are reviewing our constitution. The one that few people dare to discuss is the English question. England has been left with a pre-devolution form of government in a pre-devolution time warp. The government of Scotland, Wales and Northern Ireland has changed fundamentally, but England
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is governed by the Government of the United Kingdom. It is governed by UK Ministers and the UK Parliament, so not only is Parliament unrepresentative of the balance of parties in England, but many Ministers dealing entirely with English matters are drawn from the other parts of the UK.

There are many different ways of responding to that problem, but it cannot be acceptable simply to say that nothing has changed. Things clearly have changed-people look at Scotland, Wales and Northern Ireland and see different kinds of decisions being taken. They say, "We do not have the power to make those decisions, either in a region of England, in a local authority area or at England level." The Justice Committee has addressed that point in its report on devolution, and the Government must address it.

Another crucial issue that is absent from the Government's thinking and from the Bill is that of fixed-term Parliaments. As long as the Prime Minister can seek a dissolution at a time of his choosing, Parliament is weakened in relation to the Executive and we impose a limitation on its ability to challenge them.

I turn now to the role of the Attorney-General, which I mentioned earlier. It was covered in the draft Bill but is not in the Bill in front of us. The Attorney-General combines a ministerial role as overseer of the prosecution system with the role of legal adviser to the Government and that of deciding whether certain prosecutions should go ahead. The view of the Justice Committee was that those roles should be separated, and that view is widespread outside the House. It is brought into sharp focus when controversial cases arise.

The situation was in some ways worsened when the assumption was created that the Attorney-General should attend not just Cabinet meetings at which her advice was needed but all Cabinet meetings, which was the situation until relatively recently. When we questioned the current Attorney-General about that, she indicated that it was the Prime Minister's wish that she should attend all Cabinet meetings. I thought that that answer was rather revealing, because it showed the significance to her of the Prime Minister's wishes. I would rather hear the Attorney-General say, "The Prime Minister may want certain things, but I am the Attorney-General and my role is very distinct." There are many issues on which she has to say exactly that.

There have been some changes in the wake of the discussions on the draft Bill, and the Attorney-General does not now attend all Cabinet meetings. We are back to the previous situation, and she attends when asked to do so to discuss particular matters. The decision was made that there should be a protocol to strengthen the independence of the Director of Public Prosecutions, which I welcome as it has given a certain new authority to the Crown Prosecution Service. My Committee recently reported on the work of the CPS and the progress that it is making.

One issue that the Committee was particularly concerned about was the power in the draft Bill for the Attorney-General to discontinue not only prosecutions but investigations by the Serious Fraud Office. That is no longer in the Bill, as that whole section has gone. The response to our questions and criticisms was that that power essentially already existed, because the SFO is the responsibility of the Attorney-General. If anybody believes that that power exists, I am rather concerned
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about it. I hope that its absence from the Bill can be taken as an indication that Parliament does not want it to be viewed in that light. It is one thing for the Attorney-General to decide that a prosecution should not go ahead on the grounds of national security, but it is quite another for her to decide that a matter should not be investigated at all. That power does not exist in relation to police or Revenue and Customs prosecutions, and it should not be assumed to exist in the case of serious fraud.

On national security, my view, which was reflected in what the Committee said, is that it is not really the Attorney-General who knows about that. There are circumstances in which the Prime Minister, advised by intelligence agencies, knows things about national security that will be unknown to the Attorney-General, and there are very exceptional circumstances when it will be right for the Prime Minister to make representations to the DPP about the national security implications of proceeding with a prosecution. When that is the case, those representations should come directly from the Prime Minister, which would make them persuasive to the DPP. I do not see a necessary role for the Attorney-General in that process.

Essentially, the Justice Committee argued that the office should be separated out. There should be a legal adviser to the Government who is a career civil servant, which is the direction in which things are moving in Scotland. The current Lord Advocate has moved from one Administration to another and remained in office, so that is moving in the direction of a career appointment. There should still be a ministerial role for someone with responsibility for whether the prosecution system is working, efficient and properly resourced. I hope that I am wrong in imagining that the Government have carefully drafted the Bill to prevent us from discussing that matter in Committee, because many of us feel that we ought to do so.

Mr. Tyrie: I have just one point to make. I strongly agree with everything that the right hon. Gentleman has just said about the Attorney-General's role, but he did not make the point that it was not only the Justice Committee that came to that conclusion, but the Select Committee on Constitutional Affairs, both of which the right hon. Gentleman chaired. The Public Administration Committee also looked at the issue and came to the same conclusion. The same evidence from the same people was then heard by the Joint Committee, which extraordinarily seemed to divine from it a quite different conclusion. I think that that might say something about how the decision to withdraw that part of the Bill came to be taken.

Sir Alan Beith: When talking about the Justice Committee, I tend to subsume our previous existence as the Constitutional Affairs Committee, having been Chairman throughout, as the changes of departmental name and structure were reflected in what we were doing. However, the hon. Gentleman is quite right to refer to the other bodies that have taken the same view. Those on the Joint Committee who argued very strongly for that view were perplexed by anyone drawing a different conclusion from the evidence with which they were presented.

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To return to the overall theme, the Prime Minister has announced grand aspirations. Clearly, this is a time when we need to offer people a basis on which they can have greater confidence that they have a system of government that can respond to their concerns and govern the country efficiently, and in which nobody has too much power. That requires a lot a fundamental constitutional change.

The Government's approach to constitutional reform, the Committee has argued, has been ad hoc and piecemeal. The reforms that we have been talking about will determine the direction and nature of our institutions for generations to come, so we must get it right and it must be done properly. Therefore, we need an underpinning set of constitutional principles based on a proper understanding of the position and role of Parliament in relation to other institutions of state. The reforms cannot be taken in isolation: one affects another.

I do not think we have had a process that best achieves that; nor do I think that the roadshow will achieve it. As the hon. Member for Cannock Chase indicated earlier, there is a case for some form of constitutional convention or commission to take on a wider responsibility for ensuring that good, underlying principles are carried through into sound constitutional reforms.

That is one of the lessons of devolution in Scotland and Wales. It was much more difficult to persuade people that constitutional change should take place in Wales, because there had not been the same process of constitutional convention as there was in Scotland. Now that devolution has happened in Wales, I would not advise anyone to put money on people voting in future to reverse the constitutional changes that created an Assembly and Government there. In Scotland, the process was made much easier by the fact that there was a substantial amount of agreement by a wide range of bodies, parties, and community institutions and organisations, about the direction of travel. Constitutional change needs to be properly underpinned, widely discussed and more ambitious than the Bill.

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