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The proposal for a statutory Appointments Commission is embodied in the House of Lords Bill introduced by the noble Lord, Lord Steel of Aikwood. It is relevant to note that the Commissioner for Appointments in Scotland is established on a statutory basis, and has been operating as such since 2004. It is therefore timely to address this issue. We do not know when the Public Administration Committee in the other place will report, so it is important that the Minister does not hide behind a potential report in order to avoid offering us the Government’s thinking. Does the Minister accept that there is a case for protecting the independence of these bodies and that there is need for enhancing accountability and certainty? If he does, does he accept that doing so by statute is the most effective way of delivering those goals? If not, what is the Government's alternative?
We have seen floated the idea that theses bodies may be merged into a single super-ethics body. The noble Baroness, Lady Howe, who is in her place, referred to it on Tuesday. I would argue strongly against such a proposal. The five bodies fulfil distinct functions and require particular expertise and resources to carry out their tasks. The bodies may be created in one super-statute, but with each retaining its independence and integrity. The alternative would be to have each created by a distinct Act.
I am glad of the opportunity to raise this issue. That is the purpose of these general debates, and I look forward to the contributions from other noble Lords as well as the response of the Minister. I beg to move for Papers.
11.52 am
Lord Goodhart: My Lords, I give sincere thanks to the noble Lord, Lord Norton of Louth, for introducing a very interesting and important debate. I am only sorry that more Members of your Lordships’ House have not put down their names to speak.
I agree almost entirely with what the noble Lord has said. The debate raises a particularly important issue in relation to what is loosely called the royal prerogative but is in fact the Prime Minister's prerogative. The Prime Minister’s prerogative covers an enormous field. It covers any decision to go to war, almost all aspects of the Civil Service, the ministerial code of conduct, appointments to your Lordships' House, almost all public appointments and treaty-making powers.
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There is a widely held belief that the Prime Minister’s prerogative powers are excessive and should be diminished. In particular, there is a very strong belief that the Civil Service should become a statutory body, and, as part of that, the Civil Service Commissioners should become a statutory commission. There is a long history behind this. A Civil Service Act was included in the Cook-Maclennan report negotiated before the 1997 election between the late Robin Cook and my noble friend Lord Maclennan of Rogart, who of course will be winding up for these Benches.
The Government confirmed their commitment to a Civil Service Act in response to the House of Lords Select Committee on the Public Service in July 1998. They confirmed it again to the Committee on Standards in Public Life, of which I was then a member, in July 2000 in response to the committee’s sixth report. The Civil Service Act was recommended once again by the Committee on Standards in Public Life in its ninth report in April 2003. That in turn was followed by the publication of a report and draft Bill by the Select Committee on Public Administration of the House of Commons in December 2003, and then by an Executive Powers and Civil Service Bill introduced by my noble friend Lord Lester of Herne Hill as a Private Member’s Bill. That Bill received its Second Reading in your Lordships’ House on 5 March 2004. It inspired a three-hour debate in which a Civil Service Bill was supported by, among other speakers, the noble Lords, Lord Sheldon and Lord Wakeham, the noble Baroness, Lady Prashar, who was and still is the First Civil Service Commissioner, and the noble Lord, Lord Wilson of Dinton, who was then the immediate ex-Cabinet Secretary, as well as by many others. From the government Front Bench, the noble Lord, Lord Bassam, confirmed the Government's intention to introduce a Civil Service Bill in his response to the debate. The Government then published a draft Bill as part of a consultation paper in November 2004. However, since then, the whole scene seems to have fallen alarmingly quiet. It is absolutely clear from the history that the Government's attitude to a Civil Service Bill is the same as St Augustine’s attitude to chastity: not yet.
Of the other four bodies in addition to the Civil Service Commissioners mentioned by the noble Lord, Lord Norton of Louth, two should unquestionably become statutory bodies. Those are the House Of Lords Appointments Commission and the Office of the Commissioner for Public Appointments. In both of those, the independence of the commission from the Executive is essential. That is obvious and beyond any doubt in the case of the House of Lords Appointments Commission. It must be as impartial as possible in selecting the independent Members of your Lordships' House and in vetting party nominees. That is recognised on all sides and it seems clear that any Act for the further reform of your Lordships' House is more than likely to give a statutory basis to the Appointments Commission.
The position of the Office of the Commissioner for Public Appointments, OCPA, is perhaps not quite so obvious. OCPA does not make or recommend individual appointments. It lays down rules of practice for the appointment process and for monitoring the working of the appointments system. There is of course the
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OCPA was created as a result of the first report of the Committee on Standards in Public Life and it has done a great deal of good. The public appointments system is now, I think one can say, less partisan than for a long time past, but there is some way still to go and it is essential that public appointments should, as far as possible, be made on merit without regard to party allegiance. OCPA is vulnerable as long as it remains within the remit of the Cabinet Office. Its independence needs to be protected by making it a statutory body.
That leaves two bodies: the Committee on Standards in Public Life and the Advisory Committee on Business Appointments, known as ACBA. I note that the noble Lord, Lord Norton, did not mention ACBA during his speech. ACBA can impose restrictions on civil servants wishing to take up outside appointments for a limited period after their retirement from office and it can make recommendations to outgoing Ministers to the same effect, although recommendations to Ministers, unlike those to the Civil Service, are not binding. It performs a useful service, but it is concerned mainly with advising on individual cases, and a case is not made out for setting it up as an independent statutory body.
Finally, I served on the Committee on Standards in Public Life for six years under the chairmanship of the noble Lord, Lord Neill of Bladen, who I am glad to see follows me as a speaker, and Sir Nigel Wicks. Since the committee was set up in 1994 by John Major, it has performed very valuable services to the country. It is, of course, a purely advisory committee without powers, and it is arguable that, as a purely advisory committee that gives advice mainly to the Government, it is appropriate for it to remain within the remit of the Cabinet Office and answerable directly to the Prime Minister. I understand that this is the view of Sir Alistair Graham, as expressed by him in response to a journalist’s question at Tuesday morning’s meeting, at which I was present, on the publication of the committee’s annual report.
I do not agree with Sir Alistair on that point; I agree with the noble Lord, Lord Norton of Louth. The scope of the committee’s work goes beyond that of the Government and the Executive, as demonstrated by our seventh report on standards of conduct in your Lordships’ House and our eighth report on standards of conduct in the House of Commons. The committee should be an independent body, with the power to select its own targets for investigation. It does not have that power at present. It proposes subjects, but it is required to obtain clearance from the Cabinet Office as to whether it is to take them up. Broadly speaking, it should be to ethics in public life what the National Audit Office is to public finances. A statutory basis would also give the committee greater security. There was always a worry at the back of the minds of its members that the committee might be abolished altogether, or perhaps, more likely, that its funds would be cut to a level that would make it ineffective.
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Sir Alistair seems to have annoyed the Government by his outspokenness. It is true that he has departed from the practice of his predecessors, who all acted on the basis that they should, as chair of the committee, speak only on its behalf and not express their own views on controversial issues. I do not complain about the fact that Sir Alistair’s appointment was not renewed for a three-year term, given that no predecessor has been reappointed for a second term. It was, however, seriously wrong to refuse to extend Sir Alistair’s appointment for the few months until his successor can be appointed. The delay in making the appointment shows that the Cabinet Office is not an appropriate body to sponsor the committee. This is the third successive occasion on which the search for the successor to the current holder of the office started too late to be able to appoint the successor at the end of the term of the existing chair. On both occasions, however, the term of office of the existing chair was extended until a new chair could be appointed. The refusal to extend Sir Alistair’s term for a few months seems vindictive. I have high regard for Rita Donaghy, the senior committee member who has been asked to act as an interim chair. Inevitably, however, the committee will be marking time during this period.
To sum up, the case for giving three of the five bodies listed by the noble Lord, Lord Norton of Louth, a statutory basis is unanswerable. The three bodies are the Civil Service Commissioners, the House of Lords Appointments Commission, and the Office of the Commissioner for Public Appointments. The case, although perhaps not unanswerable, is very strong in the case of the Committee on Standards in Public Life. It is only in the case of ACBA that I believe that it would be inappropriate to set up an independent statutory body.
12.04 pm
Lord Neill of Bladen: My Lords, like the noble Lord, Lord Goodhart, I congratulate the noble Lord, Lord Norton of Louth, on bringing this debate before the House. The issue of whether there should be a statutory basis for Cabinet-appointed committees is discussed over the dinner table and in such contexts, but to my knowledge it has never been debated on the Floor of this House. The noble Lord, Lord Norton, brought to his speech a wealth of study from several committees with whose work and history he is familiar.
I have a modest contribution to make; it is entirely pragmatic and based on my knowledge and experience of one such committee, the Standards in Public Life Committee. When the time came for my noble and learned friend Lord Nolan to lay down office—he had been appointed for a three-year term—the noble and learned Lord, Lord Irvine of Lairg, asked me whether I would be willing to succeed my noble and learned friend, which naturally was an impossible task for anyone. I was further asked whether I would be happy for the terms of reference to be extended to include an inquiry into the funding of political parties and more general issues about how the finances of democratic life, so far as it consists of
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Before coming to my specific comments, I should like to make one general comment. The principled approach, advocated by the noble Lord, Lord Norton, is that essentially all such committees as we are discussing should have statutory underpinning. Of course, that criterion would create certainty. Although the arguments are not at all the same, the pragmatic approach is not dissimilar. It considers whether you want your highest court in the land to be a committee of the House of Lords or to be hived off and turned into a Supreme Court in a separate building. I will not re-enter the argument. There are two quite different philosophical approaches to that.
Based on my experience, my approach essentially is pragmatic. My first point is on flexibility. Looking back at how the Standards in Public Life Committee was set up, we all recall that there was a period of allegations of sleaze, particularly directed at the Conservative Party and its Members in the other place. In those days, the big issue was cash for questions; today we have in our minds cash for honours. That was the leading point, although there were other severe criticisms of the conduct of particular Members of Parliament.
Although I was not involved at the time, I recall that the then Prime Minister, the right honourable John Major, considered that he had to take drastic action to clean the stables. In October 1994, he set up the committee with the terms of reference:
“To examine current concerns about standards of conduct of all holders of public office, including arrangements relating to financial and commercial activities, and make recommendations as to any changes in present arrangements which might be required to ensure the highest standards of propriety in public life”.
I do not know the exact history of how that was drafted, but I suspect that the Cabinet Secretary of the day would have played an important part and a few people would have discussed those terms of reference. Essentially, this was an initiative by the then Prime Minister to deal with what he conceived to be an urgent situation where the good name of politics was in question, because such accusations spill over from one party to another and everyone is tarnished.
While the committee was at work on its first major project, which was the seminal report on standards that laid down the Nolan conditions about standards in public life and the seven principles—it is a remarkable document—the question arose whether the committee could investigate the funding of political parties. In May 1995, around seven months after it had been appointed, the committee’s response to this was:
“It would not be within the committee’s present terms of reference to examine the overall nature of party political funding and, for example, to address such questions as whether state funding of political parties was desirable”.
It went on to explain that the chairman had said that some aspects of the funding of political parties did come within the existing terms. I shall read the last sentence of that statement:
“It would be wholly wrong for political parties to seek or accept funds against an expectation of, or following, the award of public office, honours, contracts or improper influence”.
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The committee stated that principle.
The incoming Labour Party made it perfectly clear in its 1997 election manifesto and later in the Queen’s Speech that it intended to refer to the Nolan committee the question of funding of political parties. A one-sentence amendment was drawn up for the committee stating:
“To review issues in relation to the funding of political parties, and to make recommendations as to any changes in present arrangements”.
The obvious points I am making about this, on a pragmatic basis, are that first you had Prime Minister John Major confronted with a situation that needed to be handled with some urgency, and then there was an incoming Government with a problem about the funding of political parties that they had been harping on about for some time and wanted dealt with immediately. How would all that have played out in a statutory context? It would have been completely different. It is hard to imagine a Bill to set up a committee getting through Parliament in less than six months—it would have been fast going for such legislation—and to amend it would have meant further debate and argument. The statutory approach would have had disadvantages.
I shall say more about Lord Nolan’s remarks on this later. On accountability, it is crystal clear that the Prime Minister is accountable for the creation of such a committee. The right honourable John Major appointed it and the present Prime Minister continued its existence. He has relied and depended upon it. From 1997 to the present, at any point during Question Time in the House of Commons a Member could have asked, “Why did you set up a body like this? Why does it not have a statutory background? The public are dissatisfied and they do not trust the committee”. To my knowledge, not a word to that effect has ever been heard. Any suggestion that the Committee on Standards in Public Life was thought to lack independence seems almost laughable.
On the first morning of my first day on the committee, the name on the letter I had to look at was that of Bernie Ecclestone. I do not need to continue the story. Did we appear to lack independence? From then on, the Government did not agree 100 per cent with our report on the funding of political parties, but they agreed to a high percentage of it. Certainly the media, which obviously I had to meet every time we published an annual report or any other report, could have asked me questions based on the public perception that we lacked independence. It is a completely mistaken idea to think that either we lacked it or were perceived to do so. In fact, at times we have been thought to be a bit of a pain in the neck or thorn in the side of government by coming out with reports and making recommendations that have been very unwelcome.
That takes me on to my second major point: autonomy. The noble Lord, Lord Goodhart, referred to getting the identity of the next topic we were going to investigate agreed with the Cabinet Office and, via that, with the Prime Minister. It is correct that we had dialogue with the Cabinet Office before we undertook a new project, but my recollection is that the
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The rather loose and informal way in which the committee was set up had advantages. You select people of the requisite integrity and background. We had three Members of Parliament and some admirable people from business and other sections of life who were simply not going to be pushed around. If you tried to push them around, they would simply resign. You can see the advantage of the flexibility of getting the committee set up and in amending its terms of reference and the vagueness about who finally can dictate the next topic. It is my belief that we were in a position where we could always do that.
The disadvantage is that, until the noble Lord, Lord Norton, spoke, one did not know the range of references and so on, so I cannot give him an adequate response, but I can take up his three themes. On independence, the committee I am talking about was perceived to be independent. I am not quarrelling with those who say that it would be safer or better to put other committees on a statutory footing. I do not know about their work—I have not studied them enough—so that may well be correct.
On accountability, I have talked about the accountability of the Prime Minister for the appointment of the committee and allowing it to continue to exist. Were he to dismiss it because it stood in his way, it would be a serious threat to his position. The committee I am talking about had reached such a position that that would have been a highly questionable and politically dangerous course to take. I also agree with the author who was quoted as saying that the committee is accountable to the public. I certainly think that is true of the Committee on Standards in Public Life.
There has been talk about the tenure of office. That seems a straightforward case of sheer incompetence by the Cabinet Office. In my case it was meant to be a three-year term, but I was kept in office for an extra six months, simply, I think, because there was other work going on and no one took the trouble to appoint a successor. I believe that may have happened in other cases; I know of one currently, and the noble Lord, Lord Goodhart, mentioned that there had been three such examples. That incompetence should be addressed. The selection of a new chairman in due course should be treated seriously.
I am speaking about the single committee I know about. The absence of a statutory base has been an advantage, and the Government would be disadvantaged by a prescriptive rule that any standard-setting body must always be created by force of statute.
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12.19 pm
Lord Maclennan of Rogart: My Lords, I join those who have spoken in expressing appreciation to the noble Lord, Lord Norton of Louth, for introducing this topic in a very timely way. We are awaiting the report of the Select Committee on Public Administration of the House of Commons; it has been deliberating for some time and has taken wide-ranging evidence from a number of those involved in the bodies that the noble Lord brought within his purview. I can bring only limited experience to the debate—I served on the Advisory Committee on Business Appointments—although the constitutional issues it raises have been of great interest to me and many in this House for some time.
I agree with one of the noble Lord’s conclusions about the possible restructuring of these bodies. The option has been considered and, in some cases, supported by commentators and those involved in the debate that the bodies should be pooled in a gigantic organisation, for reasons of modernisation—dare I use that ugly, modern word?—and effectiveness, or to give a higher profile to the work done by these regulatory committees. I believe that the nature of the work done by all of them is quite different, each from the other. Even if one were to establish an over-riding body, it would necessarily have to operate in discrete panels. All that would be achieved would be the creation of a hierarchy of decision-making, leaving the chairman with less immediate grip on the precise issues which were being dealt with by the panel and more responsibility for, frankly, bureaucratic consideration.
I do not see that as a sensible way ahead. I notice that it was alluded to by the new First Civil Service Commissioner with particular regard to the work of her body, the Advisory Committee on Business Appointments and perhaps the Office of the Commissioner for Public Appointments on the tidy ground that it would be looking to the appointment and perhaps the promotion of civil servants as well as their conduct after leaving office. I think that very different considerations apply to each of those roles. We should avoid the argument with regard to tidiness.
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