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Secondly, not only are the Government seeking to merge these organisations, but before the Bill has even gone through Parliament, they have advertised for a chair of the new body. That chair is to be comparable in remuneration terms to the chair of an NHS strategic health authority, which is not senior enough and does not recognise that in order to attract someone of sufficient experience, seniority and stature to chair this huge, unwieldy and probably at first very uncomfortable body, the Government need to offer far more. It is worth asking whether Ministers are serious about remuneration at such a low level and whether they cannot see that other arm's-length bodies pay far more, as do the present commissions—as they should, given what is required of those chairs—Ofcom, the post of First Civil Service Commissioner, the Food Standards Agency and others. There is a real problem about how serious a job Ministers think this is and how much status they wish to give to this new commission and its chair. That advertisement and the thinking that underpinned it suggest a lack of seriousness about
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Thirdly, there is the worry about structural change per se. The Prime Minister and the Secretary of State for Health promised last summer that they would not disrupt the NHS with another round of expensive structural change. Any of us who have been involved in any of the previous rounds of changes, mergers and reorganisations, or who have commented on them, shouted out a private “Alleluia”. We all know that mergers and reorganisations take some two years to bed down, distract the key players from the very important job in hand and mean that staff start looking for new jobs the minute the legislation goes through, which disastrously disrupt present work. Governments always imagine that the savings from mergers will be enormous, but the evidence is not there, and the bodies concerned can learn to work together and share some back office functions, as those of us in this House and in another place suggested when the merger of the Human Fertilisation and Embryology Authority and the Human Tissue Authority was mooted in the legislation we were scrutinising last summer. Indeed, the Government accepted our view, and that is what will happen. Why go for the merger of those organisations and put up with the disruption that will ensue as sure as eggs is eggs at a time when Ministers are deeply concerned about infection rates in the NHS after Kent and Canterbury hospital case and others?
Fourthly, there seem to be gaps in the legislation. Like the noble Baroness, Lady Cumberlege, I think that we need principles in the Bill, which we argued, only too recently, in the mental health legislation. We need clear, overarching regulatory objectives. I was a member of Sir David Clementi’s review advisory group that looked at the legal services. Sir David is on the record as saying that the first step in defining a regulatory regime should be to make clear what its objectives should be. That is critical for those charged with regulatory responsibility since the objectives represent the criteria against which they must determine the appropriate regulatory action and against which they will be held accountable. Where is that statement of objectives? The present CSCI governing legislation has encouraging improvement in various areas written into its governing legislation, as does the Healthcare Commission. Where is the absolute duty on the new regulator to encourage improvement in services? I cannot find it in the Bill, where it should be. If it is not there, we have cause for concern.
I am sure that Ministers will say that they want lighter touch regulation, and none of us would support heavy-handed, poking-the-nose-in regulation that distracts organisations and staff from their job. But we are talking about regulation for the benefit of patients and service users. This is for the benefit of the public, especially but not only on the social care side for the benefit and protection of the most vulnerable service users and patients. There has to be a duty on the new regulator to encourage improvement in
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I can see within this legislation new penalties for the providers of care for breach of contract. Are we not talking about more than contract here? Should not the new regulator have a duty to test these pathways of care across the piece, given that those who are usually caught in the fissures between providers are all too often the very old, the very frail and the very vulnerable? I would be grateful for an assurance that the new regulator will have such a duty and that the penalties will go further than simply those provided for breach of contract.
Fifthly, I am extremely worried that, as I read it, the Bill contains no special measures as it stands for when the regulator carries out an investigation, as it must have the power to do when things are going really wrong. Where special measures exist—they are there for the Welsh NHS and English local authorities but not for the rest—recommendations are made directly to the Secretary of State by the regulator. This is not about breach of contract where the penalties now lie but about really worrying practice. Of course the Secretary of State does not want to know about every dropped bedpan up and down the line. Yet, as in the cases of Northwick Park or Kent and Canterbury hospitals where something went seriously wrong, the regulator needs the power to say so and make sure that the PCTs, SHAs, trusts and any other players get involved in sorting it out immediately. How can that happen given the Bill as it stands? Where the regulator carries out an investigation or a wider review, will it have the power to make recommendations for an instant remedial action across the whole health and social care economy? The burden of proof should not rest purely with the regulator.
My last point has already been made by the noble Baroness, Lady Cumberlege, on the role of users, patients and carers who are not sufficiently represented in the Bill. It is not adequate. We went through all of this in the Local Government and Public Involvement in Health Bill. The patient and user voice is not strong enough here. I have run out of time. Others have much more to say; I look forward to hearing reassurances from the Minister.
Constitution
3.52 pm
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Hunt of Kings Heath): My Lords, with the leave of the House, I shall repeat a Statement made by my right honourable friend the Lord Chancellor in another place. For the convenience of the House, I should make it clear that in reading this Statement, where a reference is to “this House”, it refers to the other place.
“With permission, Mr Speaker, I should like to make a Statement about our programme of constitutional renewal. With this Statement are
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“The accountability of government is fundamental to the health of our democracy. Arbitrary action and lack of transparency can subvert that, but, for decades, the royal prerogative has been used by successive governments to expand executive power. Last July, my right honourable friend the Prime Minister announced his determination that the Government he leads would reverse this process and surrender significant executive powers to Parliament or otherwise limit them. Following my right honourable friend’s July statement and the accompanying Governance of Britain Green Paper, five consultation papers were issued. I am grateful to all who responded. We have taken account of their views in the White Paper and the draft Bill.
“The draft Bill is in five Parts. Protest around Parliament: in July the Prime Minister undertook to consult widely on managing protests around Parliament to ensure that people’s right to protest was not subject to unnecessary restrictions. Our view is that Parliament itself is best placed to decide what needs to be secured to ensure that Members are able freely to discharge their responsibilities. Clause 1 of the draft Bill therefore repeals Sections 132 to 138 of the Serious Organised Crime and Police Act 2005. We invite the views of Parliament on whether additional provision is needed to keep open the passages leading to the Palace of Westminster and to ensure that, for example, excessive noise is not used to disrupt the workings of Parliament.
“The Attorney-General: Part 2 of the Bill sets out major reforms to the role of the Attorney-General and the management of prosecutions, to make the arrangements more transparent and to enhance public confidence. The proposals involve recasting the relationship between the Attorney and the prosecuting authorities. In particular the Attorney will cease to have any power to give directions to prosecutors in individual cases, save in certain exceptional cases which give rise to issues of national security. The Attorney will have to report to Parliament on any exercise of that power.
“By Clause 3 there would be a protocol which will set out how the Attorney and the prosecuting authorities are to exercise their functions in relation to each other. This will be laid before Parliament, as will an annual report. We do not propose changing the Attorney’s role as chief legal adviser to the Government or his or her attendance at Cabinet.
“Judicial appointments: Part 3 of the Bill builds on the significant reforms introduced by my right honourable and noble friend Lord Falconer to reinforce the independence of the judiciary. The Bill proposes to remove the Prime Minister entirely from making judicial appointments, and the Lord Chancellor from appointments below the High Court.
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“Treaties: Part 4 of the Bill makes it a statutory requirement that treaties must be laid before both Houses of Parliament before ratification. If this House were then to vote against ratification the Government could not proceed to ratify it.
“While this is obviously a matter for Parliament, the White Paper suggests that a valuable role could be played by committees of either or both Houses in the scrutiny of treaties prior to ratification. I should just say these proposals do not affect the current arrangements for EU and tax treaties which already have a statutory procedure attached to them.
“Civil Service: Part 5 of the Bill will for the first time put the Civil Service on a statutory footing by enshrining the core values of the Civil Service—impartiality, integrity, honesty and objectivity—into law, as well as the historic principle of appointment on merit. The Bill makes provision for special advisers and the Civil Service Commission. The Bill has benefited from the detailed comments on the draft Civil Service Bill in 2004 and from the work of the Public Administration Select Committee. I am grateful for their help.
“I now turn to the other key proposals in the White Paper.
“War powers: there was a widespread welcome in July for my right honourable friend the Prime Minister’s proposals that the Government should limit the Executive’s powers to deploy Her Majesty’s Armed Forces into conflict situations. As well as from those who responded to the consultation document we have also benefited from earlier Select Committee reports from both Houses. In the event there was significant support for the recommendations from the Lords Constitution Committee.
“What we are now proposing is that Parliament’s role should be both enshrined and guaranteed by a resolution of this House. A detailed draft of this is set out in the White Paper. It would require the Prime Minister of the day to seek the approval of this House before deciding to commit forces into armed conflict abroad. It requires him to lay a report before this House setting out the terms of approval sought and information about the objectives and legal matters relating to the armed conflict. There are exceptions to this in relation to emergencies and operational secrecy, with a requirement in such cases to inform but not to seek retrospective approval. Special forces would be exempt from any of these provisions. These changes, if agreed, would define a clear role for Parliament in the most critical of all decisions to face a nation, while ensuring that our nation’s security is not compromised.
“Public appointments: last July’s Governance of Britain Green Paper contained proposals on increasing parliamentary scrutiny of some public appointments. Since then, this has been considered by the Liaison Committee. We will respond to its recommendations shortly.
“Dissolution and recall of Parliament: on the dissolution and recall of Parliament, proposals have already been made to the Modernisation Committee. We look forward to hearing its views.
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“The Intelligence and Security Committee: last Wednesday in his Statement on the national security strategy my right honourable friend the Prime Minister said:
“We will ... immediately go ahead to introduce a resolution of both Houses—in advance of any future legislation—that will enshrine an enhanced scrutiny and public role for the Intelligence and Security Committee”.
“Executive prerogative powers: the Government are committed to reviewing the prerogative power with regard to issuing passports. Draft legislation will be published in due course.
“The Government are also reviewing the remaining executive prerogative powers; for example, the prerogative to grant mercy. The Government will consider the outcome of this work and will consult on how we plan to proceed.
“Appointments to the Church of England: the Government remain committed to the establishment of the Church of England, and greatly value the role played by the church in our national life. Appointments to senior church positions will continue to be made by Her Majesty the Queen, who should continue to be advised on the exercise of her powers of appointment by one of her Ministers, who will usually be the Prime Minister. We are very grateful to the General Synod for its proposals on how new appointments procedures should work and the Government are discussing with the church future long-term arrangements.
“Flag-flying: the Government received more than 300 responses to consultation on the flying of the union flag. In line with the majority of responses, we have decided that the interim change made to the guidance to allow government departments to fly the union flag whenever they wish should now become permanent. There are no plans to change the arrangements for flag-flying in Northern Ireland.
“Modern constitutional arrangements: good law is imperative to accessible and modern constitutional arrangements. For 40 years, the Law Commission has played a vital role in this regard. I intend to strengthen its role by placing a statutory duty on the Lord Chancellor to report annually to Parliament on the Government’s intentions regarding outstanding Law Commission recommendations and by providing a statutory backing for the arrangements underpinning the way government work with the Law Commission. These changes sit alongside those which the Leader of the House announced last week, which will strengthen the scrutiny of laws after they have been enacted by Parliament.
“We are ensuring that our constitutional arrangements continue to meet the needs of the public we serve. On reform of the House of Lords, I should tell the House that discussions in the cross-party working group are proceeding well. We are on track to publish a White Paper before the Summer Recess.
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“Over the coming months, we will publish a Green Paper on a British Bill of rights and responsibilities, and on the values which should bind us together as citizens. Today, my right honourable friend the Secretary of State for Scotland has announced that Professor Sir Kenneth Calman has agreed to serve as chair of a commission to review the Scotland Act. Such a commission was proposed in and approved by the Scottish Parliament. The Government welcome that Parliament’s support for the aim of strengthening devolution and securing Scotland’s place in the union. We are giving our full support to this cross-border, cross-party review.
“The proposals in the White Paper and draft Bill go to the heart of how power in a modern democracy should be exercised. They are not a final blueprint, but part of the much wider programme towards a new constitutional settlement. They will strengthen the role of Parliament in our democracy, for it is Parliament, the seat of our democracy, which is central to this programme of constitutional renewal. I commend the Statement to the House”.
My Lords, that concludes the Statement.
4.03 pm
Lord Kingsland: My Lords, I hope that your Lordships will forgive me for not having read the three-volume edition of the Government’s latest views on the constitution, which arrived on my desk some 20 minutes ago. My reaction will have to be based on what the Minister said.
There are some things in the Statement that we welcome, in particular the decision of the Government to reverse the legislation in the Serious Organised Crime and Police Act 2005 about protests around Parliament. We fought against this vigorously, and we are glad that the views that we expressed then have now been adopted by the Government.
We also give a more cautious welcome to the changes involving the Attorney-General. I say “more cautious”, because the Attorney-General is accountable to Parliament for the prosecution authorities and for prosecution policy generally. While I can see the force of the proposal to remove the Attorney-General in certain circumstances from individual cases, there remains the issue of how that will be integrated with the noble and learned Baroness’s overall responsibilities. I note from the Statement that there is to be a protocol, which I hope will be laid before the House. We await it with keen anticipation, and I trust that it will provide the answer to my concerns about accountability.
We of course welcome the principles to be enshrined in legislation for the Civil Service. It is a great shame that these principles should not simply be, as they have always been up to now, part of our constitutional conventions. But, alas, since they have mostly broken down, I suppose that statute is the only substitute. Nevertheless, I am glad that the principles that the Minister adumbrated are to be included. I am also pleased at his announcement about the Intelligence and Security Committee and the appointments to the Church of England.
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Nevertheless, I would not like the noble Lord to escape without some observations of a more critical nature on what he has said. Early on in the Statement he read the sentence of the Secretary of State for Justice:
“But, for decades, the royal prerogative has been used by successive governments to expand executive power”.
In fact, historically, the opposite has been the case: the royal prerogative has been steadily eroded for the past 200 years by statute; and the real basis for the expansion of executive power in this country has not been the abuse of the royal prerogative; it has been the passage of Bills giving the Executive increasing delegated legislative powers to make orders and statutory instruments. That is the way the Executive has undermined Parliament, and that has led to the growth of executive power.
Although there are many Statements about rebalancing the Executive against Parliament, they are meaningless unless Parliament gains real control of the Executive in another place. Simply to say that you are going to hand over to Parliament a particular power from the Executive without bothering to mention that, by the way, the Executive are in complete control of what Parliament does, is—if I may say so—an abuse of process. So this is a very unconvincing Statement.
In the one document that I have read, simply because it was published last July and not today—The Governance of Britain—I note that the Government state that one of their concerns is that power remains too centralised and too concentrated in government. There is nothing in the Statement that alleviates any concern about that. Where do the Government in this Statement tackle overcentralisation?
The Minister has talked about war powers. As the Minister knows, we had a long and extremely fine debate in your Lordships’ House at the end of January on this issue. I fully endorse the importance of Parliament giving its consent before troops are deployed abroad. Quite apart from the value of parliamentary authority to the troops themselves and, indeed, to the nation, we now have the added problem of the international convention of the criminal court and the requirement that soldiers should be confident that they are involved in a legal war. I am sure that the Government’s proposals are absolutely right.
However, the vote will be based on a report, as I understand it, laid before Parliament by the Government. Security matters by their very nature do not allow for Parliament to be told the whole story. That is perfectly understandable, and I make no complaint about that. But Parliament, to take its decision, must be confident that the people who know about those things, the unelected part of the constitution, the intelligence services, the military authorities, the Foreign Office and the Ministry of Defence, have all done what they ought to have done and made the checks that they ought to have made in order to give advice confidently to Parliament. That is the area that the Government should be focusing on. They should be sure that the constitutional arrangements below Parliament, if you like, are working properly, as they manifestly did not
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The Minister talked about reviewing the prerogative power with regard to the issuing of passports. I would be grateful if the Minister could tell me what the passport review means. I thought that freedom of travel, both internally and externally, was one of the hallmarks of English liberty. Is it not disturbing that freedom of travel is now becoming dependent on attendance at expensive interrogation centres and that the passport is being enmeshed with the Government’s flawed ID project? What part of constitutional renewal is it for travellers at Heathrow to be compulsorily fingerprinted?
The question of the review of Scottish matters by Professor Sir Kenneth Calman, who has kindly agreed to serve as chair of a commission to review the Scotland Act, is of course welcome; but will it be part of his remit to look at the role of Scottish MPs determining policy in England?
The Minister talked about the discussions that are going on over House of Lords reform at the moment. He has led us to believe—I have no basis on which to doubt his word, although I have no information one way or the other—that those discussions are going well. Quite what that means—“well” from whose point of view?—he may or may not enlighten us about later on. If the discussions are going well, does he not think that now is the time to make a Statement to the House about what stage they have reached? The House, after all, has an intimate interest in this matter; it has expressed its views in no uncertain terms. Will the Minister give an undertaking, at the earliest possible moment, to come to your Lordships’ House and give us an up-to-date account of where the discussions are?
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