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I should like to ask the Minister about the procedure that is going to be followed, given the changes made to the Bill this afternoon, so far as the Office of the Commissioner for Public Appointments is concerned. I understand that the practice until now has been that the committee considering candidates would be chaired by a senior civil servant in the Department for Constitutional Affairs. Bearing in mind the background to the debate earlier this afternoon, we ought to have some way of ensuring and enshrining a further degree of independent scrutiny. The principles currently set out in the code of practice underline the fact that the ultimate responsibility for appointments lies with Ministers. They also lay down that there should be an overriding principle of selection based on merit. There are of course the usual provisions about equal

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opportunities, probity, openness, transparency and proportionality, but to my mind the key provision in that code of practice is the one relating to independent scrutiny. “No appointment”, says the code,

Having now looked at the code and listened carefully to the Minister in Committee, I think this is an issue that she should address, given that she will be reflecting on the decision of this House earlier this afternoon. In any event, when these appointments come to be made, there must be independent scrutiny. I beg to move.

Baroness Ashton of Upholland: My Lords, I am grateful to the noble Lord for raising this issue and enabling me to talk a little more about the appointments process. We have drafted the Bill, as the noble Lord has indicated, to ensure that best practice is followed in the making of appointments through the monitoring and regulation of the Commissioner for Public Appointments. There is a potential conflict if we try to try to set out, in addition to that, considerations to which the Lord Chancellor and, as in the amendment to which the noble Lord referred that was passed in your Lordships’ House, the Lord Chief Justice must have regard, in making appointments, as principles appearing to them as best practice: they could conflict with the principles that have already been set out in the commissioner’s code of practice. In other words, we would have a set of principles established for how public appointments are to be made, and then, on the face of this legislation, the opportunity for those making the appointments to look at any kind of practice they consider to be appropriate. The amendment says,

I fear that that could take us in a very different direction because it would then be a subjective judgment on the part of those making the appointments about what they thought was best practice, as opposed to clearly laid down codes of practice and deliberations by the commissioner.

Lord Hunt of Wirral: My Lords, it would be of great assistance to the House if the Minister could point to the reference to which she has just alluded; namely, the reference in the Bill to the code of practice and the Office of the Commissioner for Public Appointments; I cannot immediately find it.

Baroness Ashton of Upholland: My Lords, it is not in the Bill; it is the practice that is currently used by the Government. The Government have the commissioner, as well as a transparent process. The noble Lord himself has looked at the workings of the code of practice and so on, and that is the basis on which appointments are made. It is not in legislation, not least because the code of practice and the way appointments are made are updated from time to time, based on current best practice and best thinking. I am

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sure that over the years your Lordships’ House has had many debates, not least with the noble Lord, Lord Neill of Bladen, about making sure that there is an opportunity to update best practice and to be mindful of changes that could be made. It is not in the Bill; it is, however, the way in which public appointments are made where Ministers are involved. That has been the way of it, certainly so long as I have been a Minister. We follow the guidance on the basis of the detail I have already given about transparency, openness and so on.

I turn to who makes the appointments. The noble Lord is right that the way the guidance works is that the panel is chaired by a senior civil servant, but it is not run by them, except in so far as they have a responsibility as chair to ensure that the process is followed properly, that people participate appropriately, that the candidates are treated fairly and so on. They may indeed ask questions themselves, because they have a clear interest, but earlier today in Questions we were talking about the importance of the senior Civil Service and of its independence, in the context of a desire, from the Liberal Democrat Benches in particular, for a Civil Service Bill. None the less, it is important—I think noble Lords would concur with this—that the senior Civil Service is independent, acts with probity and pursues this policy and practice appropriately. That is who chairs it. That is how the appointments have been made. To my knowledge there has been no suggestion that they are handled with anything other than independence and probity. In addition, there is an independent assessor from the Office of the Commissioner for Public Appointments who sits on the panel and makes sure that the OCPA code of practice is followed. So there is already a senior civil servant, plus the independent assessor who ensures that the code is followed, and then there has to be at least one other member of the panel, someone who the OCPA code says represents a public body or other industry groups. In this context that could include a consumer or legal professional, or whatever was felt to be appropriate.

The guidance says,

That would enable the panel to have the additional expertise of someone who had the necessary technical knowledge. Taken as a whole, the guidance ensures that we have the right level of expertise and of impartiality.

When there is no final decision on the composition of the panel, there have been discussions about what kind of expertise there might be, and, through the implementation working group, what kind of individual might most appropriately be involved.

Lord Campbell of Alloway: My Lords, my name is on the amendment, and I am rather puzzled. Does the chairman, the senior civil servant, have a vote? Would it be possible for us to see these codes of practice? Could they be left in the Library or something? I am getting rather out of my depth. I did not intervene before because I did not want to waste time, but now that I cannot understand what is going on, I am asking for some help.

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Baroness Ashton of Upholland: My Lords, I am always happy to supply help. I think the codes of practice are already in the Library, and they are certainly available on the websites. I will ensure that the noble Lord, Lord Campbell, has his own copy of them. I was trying to describe in brief what the guidelines cover.

These panels do not necessarily end up voting, but if they do, the chair would indeed have a vote—if there were a disagreement on the panel, for example.

Lord Campbell of Alloway: A casting vote, my Lords?

Baroness Ashton of Upholland: My Lords, I am not sure if it would be a casting vote, but we will confirm that to the noble Lord. It is about ensuring that there is a clear decision, and the chair has a responsibility to do so.

The panel consists of a minimum of three and possibly four people who are impartial and regarded as being able to follow the procedures appropriately. They then put forward their recommendations. My experience of this is that it works extremely well, and the ability of the panel to describe the process is highly regarded. The Office of the Commissioner for Public Appointments ensures that the process works very well.

That is the process that would be undertaken, and I would not wish to alter by amendment the way we do that. If you have an amendment that says you have people able to make their own judgments about what good practice is, we could end up in exactly the position noble Lords are fearful of, where the Minister decides he does not like that rule so he will have something different. Then it becomes very unclear.

We do not think it is right to put anything further on the face of legislation. It is important that we use the current procedures and allow them to develop and grow and not be tied by legislation that could eventually be out of date or not relevant. I have already made it clear that we would make sure that these appointments were made according to the principles of merit, probity, openness and transparency that apply to all other public appointments.

Baroness Butler-Sloss: My Lords, I wonder whether I could add one sentence. I am neutral about the amendment, but I have sat on one of these panels. I was invited by the DCA to sit on a panel with a senior civil servant and another independent person. I was the only lawyer—I was not asked to sit on it because I was a lawyer—and there was someone from the Office of the Commissioner for Public Appointments. I confess that I was extremely impressed by the whole procedure and by the senior civil servant who chaired it. We came very amicably to a conclusion with which we were all happy. Since the noble Lord, Lord Campbell of Alloway, has expressed some concern, I wanted to say that although I was neutral about the amendment, the process seemed to be excellent.

Baroness Ashton of Upholland: My Lords, the noble and learned Baroness has breached all procedure on Report, but I am delighted with her contribution, for which I thank her.

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Lord Maclennan of Rogart: My Lords, I am sympathetic towards the amendment, although I am bound to say that I take the—

Lord Evans of Temple Guiting: My Lords, I remind the noble Lord that after the Minister has spoken, unless for very carefully specified reasons identified in the Companion, noble Lords may not speak.

Lord Maclennan of Rogart: My Lords, I apologise—

Lord Evans of Temple Guiting: My Lords, we have been through several stages of the Bill; we have talked and talked and talked. We are now on Report and must abide by the Companion, which is very clear on this matter.

Lord Maclennan of Rogart: My Lords, I understood that the Minister had merely given way to the previous speaker. I was hoping to ask, before she sat down, to deal with a point that she had made. I can ask the question very briefly. I certainly was not intending to flout the conventions or the Companion.

Lord Evans of Temple Guiting: My Lords, I am sorry to interrupt but the noble Lord is now flouting those conventions.

Lord Maclennan of Rogart: My Lords, I do not believe that it is flouting the conventions to ask the Minister before she has concluded to answer a particular point she raised. Would she be prepared to consider a form of words which made it plain that the decisions about appointments and the principles to be applied were not being made subjectively by the appointments board but objectively, according to merit and the principles she enunciated?

Baroness Ashton of Upholland: My Lords, I am sorry, but I had sat down. I am not considering a form of words because the process, with the Office of the Commissioner for Public Appointments, works extremely well. It serves the Government and Parliament very well. It is enshrined in the code of practice; it is publicly available; it is open and based on merit. There is no need to say anything other in the legislation than that we will follow that process; it applies to all ministerial appointments and does not need to be in the Bill. That is why I am resisting the amendment; it is not because I do not accept that noble Lords want to see a positive process of merit and transparency. We already have one, and we do not put it in legislation. The Office of the Commissioner for Public Appointments says that putting anything different in the legislation would undermine its work completely because it could not operate in the way it would wish, as we are bound to have said something that would arguably go against what it was doing.

Lord Hunt of Wirral: My Lords, I thank noble Lords for a very interesting debate. I think that it is always open to noble Lords, having heard the Minister, to respond by saying that they do not agree. In fact, that is what I am going to say. I do not agree with the noble Baroness. The reason the Joint Committee took

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the view it did was because the appointments we are talking about have a closer similarity to the procedures relating to judicial appointments than to the ordinary run-of-the-mill appointments which are made in accordance with the code of practice.

Let me say to the noble and learned Baroness, Lady Butler-Sloss, that as the person responsible for introducing the code when I was in the Cabinet, I am pleased with the way in which it has evolved. But the appointments we are talking about here must have independence as a key hallmark. I read out the reference in the code to independent scrutiny. That is the feature I sought to stress and I was a little disappointed with the Minister—she went through merit, equal opportunities, probity, openness and transparency, and proportionality, but did not include independent scrutiny. I think that that is the most important thing of all, which is why I wish to test the opinion of the House.

7.15 pm

On Question, Whether the said amendment (No. 16) shall be agreed to?

Their Lordships divided: Contents, 98; Not-Contents, 124.

Division No. 2


Addington, L.
Anelay of St Johns, B.
Ashdown of Norton-sub-Hamdon, L.
Attlee, E.
Avebury, L.
Blaker, L.
Bonham-Carter of Yarnbury, B.
Bridgeman, V.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Carlile of Berriew, L.
Carnegy of Lour, B.
Clement-Jones, L.
Colwyn, L.
Cotter, L.
Cox, B.
Craigavon, V.
Crathorne, L.
De Mauley, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dykes, L.
Falkland, V.
Fearn, L.
Flather, B.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Freeman, L.
Garden, L.
Geddes, L.
Glasgow, E.
Glenarthur, L.
Goodhart, L.
Goschen, V.
Hamwee, B.
Harris of Richmond, B. [Teller]
Hooson, L.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Kingsland, L.
Kirkwood of Kirkhope, L.
Laing of Dunphail, L.
Lamont of Lerwick, L.
Lee of Trafford, L.
Lindsay, E.
Linklater of Butterstone, B.
Liverpool, E.
Lucas, L.
Lyell of Markyate, L.
McColl of Dulwich, L.
Mackay of Clashfern, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
McNally, L.
Mar and Kellie, E.
Marlesford, L.
Masham of Ilton, B.
Mawhinney, L.
Miller of Chilthorne Domer, B.
Morris of Bolton, B.
Neill of Bladen, L.
Newby, L.
Northbrook, L.
Oakeshott of Seagrove Bay, L.
Park of Monmouth, B.
Pilkington of Oxenford, L.
Rawlings, B.
Razzall, L.
Reay, L.
Redesdale, L.
Rennard, L.

16 Apr 2007 : Column 72

Roberts of Llandudno, L.
Sandberg, L.
Scott of Needham Market, B.
Seccombe, B. [Teller]
Shephard of Northwold, B.
Shutt of Greetland, L.
Smith of Clifton, L.
Southwark, Bp.
Stoddart of Swindon, L.
Taylor of Holbeach, L.
Teverson, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tonge, B.
Tordoff, L.
Tyler, L.
Ullswater, V.
Vallance of Tummel, L.
Waddington, L.
Wallace of Saltaire, L.
Wilcox, B.
Williams of Crosby, B.


Acton, L.
Adams of Craigielea, B.
Adonis, L.
Ahmed, L.
Allenby of Megiddo, V.
Alli, L.
Amos, B. [Lord President.]
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Bilston, L.
Blackstone, B.
Bledisloe, V.
Blood, B.
Boyd of Duncansby, L.
Brennan, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Campbell-Savours, L.
Carter of Coles, L.
Clark of Windermere, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Corston, B.
Crawley, B.
David, B.
Davidson of Glen Clova, L.
Davies of Oldham, L. [Teller]
Drayson, L.
D'Souza, B.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. [Lord Chancellor.]
Farrington of Ribbleton, B.
Filkin, L.
Ford, B.
Foster of Bishop Auckland, L.
Gale, B.
Giddens, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Brookwood, L.
Gould of Potternewton, B.
Greengross, B.
Grocott, L. [Teller]
Hannay of Chiswick, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haskins, L.
Haworth, L.
Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
King of West Bromwich, L.
Kingsmill, B.
Kinnock, L.
Kirkhill, L.
Lea of Crondall, L.
Lipsey, L.
Lofthouse of Pontefract, L.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Massey of Darwen, B.
Maxton, L.
Mitchell, L.
Moonie, L.
Morgan, L.
Morgan of Drefelin, B.
Morris of Handsworth, L.
Morris of Yardley, B.
O'Neill of Clackmannan, L.
Palmer, L.
Patel, L.
Pitkeathley, B.
Plant of Highfield, L.
Radice, L.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Robertson of Port Ellen, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Simon, V.
Snape, L.
Soley, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Temple-Morris, L.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Varley, L.
Wall of New Barnet, B.
Warner, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Whitaker, B.
Whitty, L.
Williamson of Horton, L.
Woolmer of Leeds, L.

16 Apr 2007 : Column 73

Resolved in the negative, and amendment disagreed to accordingly.

7.26 pm

Lord Evans of Temple Guiting: My Lords, before I adjourn the House for dinner, in view of our discussion just before the vote on the last amendment, I would like to read a couple of lines from the Companion so that noble Lords will understand the rules on Report. It states:

I have done my duty.

I beg to move that further consideration on Report be now adjourned. In moving this Motion, I suggest that Report begin again not before 8.30 pm.

Moved accordingly, and, on Question, Motion agreed to.


7.27 pm

Lord Blaker rose to ask Her Majesty’s Government what policies they are adopting regarding the situation in Zimbabwe.

The noble Lord said: My Lords, I pay tribute to all noble Lords who have come here to make a two-minute speech. Those who are going to speak should not thank me or congratulate me on this debate because that just takes time.

A few weeks ago we had reason to be optimistic about Zimbabwe. The two leading figures in ZANU-PF under Mugabe appeared to be agreed, in spite of their mutual rivalry, on denying Mugabe the opportunity of extending his presidency for six or more years. The International Crisis Group believed that a realistic chance had at last begun to appear to resolve the Zimbabwe crisis. That prospect has disappeared in blood and brutality and through the feebleness of SADC.

We have seen the full horror of Mugabe's regime reflected in the battered faces of leaders of the opposition taking part in a peaceful prayer meeting. We have seen young men, no doubt trained in violence in the green bomber brigades, being issued with police uniforms to give them a semblance of authority to conduct violence against the innocent.

The courage of those at that meeting, completely unarmed, was remarkable. Random assaults by the police have been reported to continue for days. A woman member of the British Embassy, who had been visiting the injured in hospital, was told in the government-owned newspaper:

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