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House of Lords

Friday, 5 March 2004.

The House met at eleven of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.

Prayers—Read by the Lord Bishop of Rochester.

Executive Powers and Civil Service Bill [HL]

11.5 a.m.

Lord Grocott: My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Executive Powers and Civil Service Bill, has consented to place Her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament, for the purposes of the Bill.

Lord Lester of Herne Hill: My Lords, I beg to move that this Bill be now read a second time. It is a constitutional measure creating a framework for better parliamentary scrutiny of the executive. Its first purpose is to place under parliamentary authority the executive powers exercised by Ministers by virtue of the Royal prerogative, including treaty-making. Secondly, it puts on a statutory footing the basic principles upon which the Civil Service is based and the ground rules governing the relationships between Ministers, civil servants, special advisers and Parliament. Thirdly, it establishes a procedure for the approval of some key public appointments.

Even though I have done it before in my two Human Rights Bills, it is unusual for a constitutional measure to be introduced as a Private Member's Bill. But such a Bill should have been introduced by the present Government several years ago. I look forward to learning from the Minister whether the Government intend at last to introduce a draft Civil Service Bill during the next few months and whether they support new machinery for the parliamentary scrutiny of treaty-making and for making key public appointments. The Minister's response—and I have written to him in advance on the issue—will enable me to decide whether to take the Bill through all its stages in this House if it is read a second time.

The ideas reflected in the Bill are not original. In 1854 the Northcote-Trevelyan report on the Organisation of the Permanent Civil Service recommended that the key principles and structures governing the Civil Service be enshrined in statute. The Bill gives effect in broad terms to recommendations made by the Committee on Standards in Public Life, Defining the Boundaries within the Executive: Ministers, Special Advisers and the permanent Civil Service, in its ninth report of April 2003. Sir Nigel Wicks who chaired that committee—my noble friend Lord Goodhart was a member of it—has said that the introduction of legislation to regulate the relationships between Ministers, civil servants, special

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advisers and Parliament could help to restore some of the public trust in central government and public office holders that has been lost in recent years.

I warmly welcome the recent publication by the Commons Public Administration Select Committee chaired by Dr Tony Wright MP of a draft Civil Service Bill. My Bill goes further, but both initiatives have the same common purpose of persuading the Government to introduce legislation worthy of the name. Dr Wright's Bill has been introduced in the other place and may have its Second Reading debate today. The Public Administration Select Committee is currently preparing a report on Parliament and the prerogative. That report is likely to be published within the next couple of weeks with another draft Bill. Obviously, that will be a very important initiative indeed. I hope that it may persuade the Government to be more ambitious. Rather than produce a narrow minimalist draft Civil Service Bill—although that would be better than nothing—I hope the Government will deal with the wider issues about prerogative powers that will be addressed by the Public Administration Select Committee. If necessary, and if the Bill is given a Second Reading, I shall seek to amend my Bill in the light of that committee's two reports and draft Bills.

We were all brought up to believe that there were two fundamental principles protected by our unwritten constitution: one was parliamentary supremacy, that the executive was accountable to Parliament rather than to the Sovereign; and, secondly, the principle of the rule of law, that public powers should be exercised according to the law of the land. The difficulty about our elastic and flexible unwritten constitution, with all its advantages, is to make sure that those principles apply in practice.

Should it be Parliament that is sovereign, to whom the executive is constitutionally accountable, or should it be the monarch? The view on which the Bill is based is that in our modern democratic society it should be Parliament, while preserving intact the personal prerogatives and immunities of the sovereign, like any other constitutional head of state.

Prerogative powers are a necessary incident of government. But it is surely anomalous that the Crown is able, on the basis of medieval notions of kingship, through the Queen's Ministers, to exercise public powers without parliamentary authority. It is time that Ministers and civil servants, in conducting Her Majesty's Government, do so under parliamentary authority. That is not a radical or republican view. The symbolic role of the monarch is unaffected, as are the sovereign's personal prerogatives. But public powers should be exercised with parliamentary rather than monarchical authority.

We also need better parliamentary scrutiny of treaty-making and of war powers. Treaties reach into every nook and cranny of our lives. It is anomalous that Parliament has almost no role in the process of ratification of important treaties and it is done entirely under the prerogative. In the European Union in relation to legislation there is scrutiny but there is no equivalent scrutiny for treaties generally, as—for example—the commission of the noble Lord, Lord Wakeham, pointed out in its proposals for Lords reform. I am delighted that the noble Lord will be taking part in this debate.

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This part of the Bill could be implemented without legislation if the Government were willing to give urgent and strong support for the recommendations made by the Wakeham commission. That support has so far not been forthcoming.

On war powers, it is entirely anomalous that there is no principle that parliamentary authority must be sought before we wage war, except in situations of grave emergencies, so grave that there is no time to consult Parliament. As regards appointments to public office, it seems entirely anomalous that appointments to key offices such as the Parliamentary Commissioner for Administration, the First Civil Service Commissioner—I am delighted that she will be taking part in this debate—and the chairs of the equality commissions are made by Ministers without any parliamentary advice or consent.

Clause 1 defines the executive powers that are to be placed under the authority of Parliament, but excludes rights and powers that belong to the Queen personally or to any other member of the Royal Family. The symbolic official functions of the Queen, such as summoning, prorogation and dissolution of Parliament and the giving of Royal Assent to Bills, will not be affected.

Clause 3 enables Parliament to approve treaties before they are ratified and to secure parliamentary approval before members of the Armed Forces are sent into combat. Clause 4 establishes a committee of both Houses to review the circumstances in which executive powers are exercised. It needs to be read with Schedule 1. Part 2 creates a statutory framework for the Civil Service structure in England, Wales and Scotland. During the 150 years since Northcote-Trevelyan, many have pressed for a coherent, statutory framework governing the functions of Ministers, civil servants and special advisers. I shall recall just a few recent examples.

In 1995, the first report of the Committee on Standards in Public Life was published under the chairmanship of the noble and learned Lord, Lord Nolan. By that stage, the Major Government had begun a process of consultation on whether the Civil Service should no longer be regulated under the prerogative, but under statute. The Nolan committee saw merit in the idea of a statutorily based Civil Service. I have included references in my speaking notes to where one finds these quotations, and they could conveniently be included in Hansard if the Editor thought that was useful for the House. I shall not weary the House by citing all the references now.

Shortly before the 1997 election, the Labour and Liberal Democrat parties set up a Joint Consultative Committee on Constitutional Reform, on which my noble friend Lord McNally and I served, together with my noble friend Lord Maclennan of Rogart. Both noble Lords are taking part in this debate. Our joint report identified common ground between the parties and said that:

    "Both parties agree that there should be a Civil Service Act to give legal force to the Code, which should be tightened up to underline the political neutrality of the Civil Service. It should also be reviewed in relation to other public authorities, to clarify lines of Civil Service and ministerial accountability and responsibility".

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The sixth report of the Committee on Standards in Public Life, under the chairmanship of the noble Lord, Lord Neill of Bladen, concluded:

    "A timetable for the introduction of the Government's commitment to a Civil Service Act should be produced as soon as possible. In particular, a target date should be set for the consultation on the scope of such an Act".

Other countries with similar systems, including Australia, New Zealand, Canada, and Ireland have legislated to put their public service structures and values on a statutory footing, recognising that,

    "as one of the great institutions of state, the Civil Service needs to be insulated against the vagaries and caprice of party faction, fad or prejudice".

In April 2003, the ninth report of the Committee on Standards in Public Life, chaired by Sir Nigel Wicks, recommended that:

    "The Civil Service should be established in statute",

and that,

    "There should be a short Act to cover the Civil Service and special advisers".

In 2000, the Wicks Committee noted that the debate surrounding the need for a Civil Service Act had,

    "acquired fresh importance because of the radical reform of the Civil Service that this Government is pursuing".

There have been concerns about the increasing numbers and the intrusive role of special advisers leading to the politicisation of the Civil Service. In May 2002, my noble friend Lord Holme of Cheltenham—who is also taking part in this debate—called attention to the case for a Civil Service Act, clarifying the respective responsibilities of Ministers, political advisers and civil servants. Former Cabinet Secretaries—one of whom is taking part in this debate—and special advisers lent the collective breadth of their experience to a lively and authoritative debate.

Many noble Lords commented on the timeliness of the debate. The noble Lord, Lord Butler of Brockwell, who has expressed regret for his inability to be present today—had he been, he would have spoken supportively—said:

    "Why then, when a non-political Civil Service has survived for almost 150 years on the basis of the Royal Prerogative and the Civil Service Order in Council, is legislation now needed to provide for it? In my view, the reason does not lie in the ill intentions of either this or any other government. It lies in the changing context in which government is conducted. This has introduced requirements which have become, I think, dangerous to the concept of a non-political Civil Service—[Official Report, 1/5/02; col. 698.]

The noble Baroness, Lady Prashar will enrich this debate with her authoritative contribution. I hope that she will forgive me for quoting her now. She said:

    "By enshrining in statute the core values of appointment by merit after fair and open competition, and by incorporating in statute the responsibilities and powers of the Civil Service Commissioners, including the obligation to report on their work, we would place the constitutional position of the Civil Service more directly under the oversight of Parliament".—[Official Report, 1/5/02; col. 704.]

The evidence revealed during the inquiry carried out by the noble and learned Lord, Lord Hutton, about the workings of the Civil Service gave rise to widespread

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public concern about the current position. The annual report of the Wicks committee, published in February 2004, noted that,

    "a number of the issues that were raised during Lord Hutton's inquiry were presaged, in a general way, in the recommendations made in our Ninth report . . . including: clarity, and parliamentary approval through a Civil Service Act, of the appropriate boundaries between Ministers, Special Advisers and Civil Servants; a clear statement of what Special Advisers cannot do set out in primary legislation; and the need for powers to be given to the Civil Service Commissioners to investigate, on their own initiative, concerns raised about possible breaches of the Civil Service Code".

The committee expressed its belief that:

    "The Government's response represents a seriously missed opportunity to bring the necessary clarity about the proper boundaries within the executive; to ensure the right degree of security about their maintenance; and through this, to enhance public trust in the processes of government".

On 4 February, the debate on the Hutton inquiry spurred further calls for a Civil Service Act. For example, my noble friend Lord McNally said:

    "The lessons from Hutton are very clear. Never again should a political appointee, and especially the Government's political propaganda chief, be so closely involved in the workings of our secret services. The role and powers given to Alastair Campbell when the Government came into power in 1997 were fraught with dangers for the political neutrality of the Civil Service and the integrity of the information services. There is an urgent need for a Civil Service Act to underpin the Northcote-Trevelyan principles of a politically neutral Civil Service promoted on merit".—[Official Report, 4/2/04; col. 778.]

I hope that it is clear from the above that the time is over-ripe to put the Civil Service on to a statutory footing so that we can have a politically neutral Civil Service, appointed on merit, without political interference or control by politically partisan special advisers.

I declare an interest as a former special adviser to Roy Jenkins at the Home Office. At that time, 30 years ago, the Civil Service was robustly impartial and politically neutral. Often, if I may say so, civil servants stood up to Roy Jenkins, junior Ministers and me—thank heavens that they did, as they prevented us making some of the crass mistakes of which I personally might otherwise have been guilty. In recent years, concerns have been expressed that there has been an erosion of the impartiality of the Civil Service, especially under the administration of the noble Baroness, Lady Thatcher, and the present Government. Some have argued that the best reform would be fully and openly to politicise the Civil Service. I do not agree with that course. I continue to believe that, under our system of government, a politically neutral, impartial Civil Service appointed on merit and exercising executive power is a constitutional necessity. It promotes rather than undermines good governance. That is why legislation really matters.

Part 2 creates a framework for the Civil Service structure in England, Wales and Scotland. Wicks recommended that the Civil Service Commissioners should continue to be responsible for ensuring that the merit principle is properly applied and that the commissioners should be granted powers and facilities to investigate, on their own initiative, and to report on the operation of the Civil Service recruitment system as it concerns the application of the principle of selection on merit. That is exactly what the Bill does.

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Under Clause 6, selection to the Civil Service must be by merit on the basis of fair and open competition, except where it is otherwise expressly provided for in the Act. Clauses 7 and 8 set up the Civil Service Commission and outline its duties. Clauses 15 and 16 and Schedule 3 grant powers to the commissioners to enable them to investigate and report. Wicks recommended that a Civil Service Act should include a statutory obligation on Ministers to uphold the impartiality of the Civil Service. Clause 10 does that by making it the duty of each Minister of the Crown to uphold the integrity and impartiality of the Civil Service and to uphold the independence and impartiality of the Civil Service Commission. That is similar to the obligations included in the Constitutional Reform Bill, which we shall debate on Monday, in relation to judicial independence. It is likely to be of greater practical importance as applied to civil servants than to judges.

Clause 13 provides that the Minister for the Civil Service shall issue codes of conduct for civil servants and for special advisers to set out the constitutional framework within which they work and the values that they are expected to uphold. The draft code must be published and representations sought from the Civil Service Commission. The draft code must then be laid before both Houses of Parliament.

The important office of Commissioner for Public Appointments was established in December 1995 as a direct result of a recommendation in the first report of the Nolan committee. The commissioner, currently Dame Rennie Fritchie, is appointed by the Queen under the Public Appointments Order in Council 2002. Clause 19 puts the office of Commissioner for Public Appointments on a statutory footing.

Special advisers are currently appointed by Ministers to the Civil Service under powers conferred by the Civil Service Order in Council 1995 as amended. The number of special advisers did not vary much for 20 years from Harold Wilson's time as Prime Minister, and at the beginning of 1997 there were 38 in government. But the number in December 1999 stood at 74. The Civil Service Order in Council 1995 was amended in 1997 to give up to three special advisers, all at No. 10, executive powers over civil servants. On 9 February 2004, the noble Lord, Lord Bassam of Brighton, provided helpfully an up-to-date list of special advisers, which revealed that there are currently 73 special advisers, no fewer than 27 of whom are assigned to the Prime Minister. I believe that no special adviser should be able to exercise executive powers over civil servants, and look forward to the Minister's response on this point. The Bill goes further than the Wicks report in this respect, because Wicks accepted that the existence of two posts with executive powers within the office of the Prime Minister should be recognised in statute.

Clause 11 provides that no special adviser, as defined in Clause 5, may exercise executive powers. Each special adviser will be under a duty not only to uphold the integrity and impartiality of the Civil Service but also to act at all times with honesty and integrity. In particular, they will not have the powers

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to authorise any spending of government money, to be able to instruct civil servants or to have any role in the line management of civil servants.

Clause 12 requires an annual report on the appointment, role and responsibilities of special advisers. No doubt, the Bill can be improved, notably by including the provisions in the Wright committee's draft Bill removing nationality restrictions on access to the Civil Service. We left that out; it is a gap that needs to be filled. But I hope that the main principles upon which the Bill is based will find support across the House, strengthened as it is today by many noble Lords with former ministerial experience, and that the Government will either support the Bill or introduce a draft Bill of their own that is worthy of the issues that we have raised. I commend the Bill to the House.

Moved, That the Bill be now read a second time.—(Lord Lester of Herne Hill.)

11.29 a.m.

Lord Sheldon: My Lords, I congratulate the noble Lord, Lord Lester, on bringing forward this Bill. It should have been introduced by the Government. It is quite disgraceful that, year after year, there is pressure from both Houses and Bills are put forward in both Houses, but the Government have not yet taken action. That is a great omission that obviously needs to be emphasised in the light of what the noble Lord, Lord Lester, has said today. It has obviously been a time-consuming task for him. However much assistance he may have had, it has been a great burden that has fallen on him. We should recognise and value the work that he has done.

I should also like to record my appreciation for Tony Wright, the honourable Member for Cannock Chase, and the Public Administration Committee. I was chairman of the Liaison Committee while he laboured in his committee. I am fully aware of his work and dedication which made that committee one of the successes of our parliamentary process. He has shown what can be achieved within the Select Committee system.

On looking at the Civil Service, the concept of service has always been an important strength from which we have all benefited. Even in these more cynical times there are still many who believe that the opportunity to take a part in the defence of our country or to play a part in its achievements is one of the noblest of aims.

In the early post-war years that was particularly true. There were men and women who had served their country and looked to the planning of the post-war society in which they would bring their strengths to the service of their country. That idealism resulted in much of the ensuing work of recovery and restoration in our country in the post-war years.

The background to all of that was the consequence of the great Northcote-Trevelyan reforms, quite rightly referred to by the noble Lord, Lord Lester. In their momentous report, they condemned the incompetence,

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the nepotism and other defects as they then existed, and showed how merit could be recruited in the interests of our country.

The reforms that followed were the foundations of our administration and produced the professional non-party-political Civil Service that we have had the privilege to enjoy. Indeed, they were the greatest development of public service seen in our country. The standards set by the Civil Service spread into local government, the professions and, to some event, even into industry. That was a development which, looking back, must make us proud that it was in our country that we were able to devise a system of administration which was high-minded, ethical and actually worked, and which largely delivered what was promised. A century later it fell to the Fulton committee to put forward a number of reforms which, although substantial, did not change the ethos of the service; the important changes in the relationship with government were accomplished without too much difficulty.

The issue which has brought the questioning about the relationship between Ministers and the Civil Service is as great as anything that we have known in the past century and a half. Our particular problem is the expanding role of the special adviser. The Fulton committee recommended the use of special advisers. Page 105, paragraph 15, of the report states:

    "In addition to the Permanent Secretary, there should also be in most departments a Senior Policy Adviser to assist the Minister. . . . His prime job would be to look to and prepare for the future and to ensure that present policy decisions are taken with as full a recognition as possible of likely future developments".

That was 36 years ago, and what was said is as relevant now as it was then. The Fulton committee on the Civil Service recommended the setting up of the Civil Service Department. In 1974, six months before I went to the Treasury, I took on the responsibility of the Civil Service Department. The Minister for the Civil Service was the Prime Minister. Harold Wilson had other matters to consider between the two general elections in 1974. I was made the Minister responsible for the day-to-day running of the Civil Service Department. That appointment followed from my membership of the Fulton committee, of which the noble Lord, Lord Allen of Abbeydale, was a member. The noble Lord, Lord Croham, was the Permanent Secretary and head of the Home Civil Service.

In its recommendations, the aims of the Fulton committee were that special advisers would not only have a close political relationship with the Minister but also be known for their standing and experience. So it was that in 1974, Nikki Kaldor, Tommy Balogh, Brian Abel-Smith and others brought their talents into the Civil Service. It was in the Civil Service Department that I had responsibility for approving them and agreeing their salaries. That was the kind of situation that was thought to be sensible. People with knowledge and understanding were brought into the Civil Service to help the political party to which they were attached. That was generally accepted.

In more recent times we have seen some useful appointments as well as some inexperienced people who may share the politics of their Minister, but we are

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unsure what else they bring to their office. We understand that apart from two individuals no special adviser can give instructions to civil servants. But that does not present the whole picture. Even apart from these two individuals, special advisers can press civil servants with the advantage that they possess of being close to the Minister and even asserting views which may not precisely match those of the Minister.

In November 2001, in evidence to the Public Administration Committee, Sir Richard Wilson, now the noble Lord, Lord Wilson, gave an account of his early experience. He said:

    "I found myself at a much more junior level than I am now in a situation where special advisers were, as it were, giving me instructions and I found myself in quite difficult positions as a result of that. I think this question of how far special advisers in practice can tell or ask civil servants to do things is an issue which has existed for quite a long time as a grey area but has now become a matter of public concern and controversy".

He also pointed out that in what he calls his "junior years", he came close to being instructed by special advisers and that that was a serious matter. More recently, the Select Committee on Public Administration has taken evidence which demonstrates that special advisers have come close to taking positions at higher levels within the machinery of government. What is happening is really quite disgraceful. In our country, people who are unelected are able to offer that kind of strength to views that only they may possess. This is a serious matter, particularly given that the Government do not allow special advisers to appear before Select Committees. If they did, we would find out more about the way in which they work and carry out some of the responsibilities of which we are unaware.

If such special advisers are to hold such powers, is it not essential that the Government relax their views and allow Select Committees to discover what it is they do and how they undertake their work? In particular, I approve of the position here that no special adviser may exercise executive powers. That is an important part of the Bill, which I wholly appreciate.

It is the position of special advisers in relation to civil servants which is a major requirement of this legislation. They may be helpful to Ministers, and it is right that they should be, but they ought not to distort the production of and the detailed consideration of policy choices, which is a most important task of administrative civil servants.

In the public administration report, it is pointed out that since the general election, special advisers have consolidated senior positions in the machinery of government. The report states:

    "We regret that the Government has not accepted the Committee's recommendation of a cap on the amount of money that can be voted by Parliament for special advisers".

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