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European Union treaties have their own mechanism for parliamentary scrutiny but, under the Ponsonby rule introduced in 1924 and as currently practised, all other treaties subject to ratification are laid before Parliament, when signed, for a period of 21 sitting days before ratification and publication in the treaty series. Since 1997, each treaty is accompanied by a government Explanatory Memorandum providing information about the treaty's contents, the Government's view of its benefits and burdens and the rationale for ratification. Few treaties are debated under the Ponsonby rule, although the Government have agreed to make time for debate in certain circumstances. Even if there is a debate and Parliament expresses its disapproval, this does not necessarily prevent the Government from ratifying the treaty. None the less, the Ponsonby rule has resulted in most important treaties having some

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degree of parliamentary scrutiny. Select Committees in another place have, over the past decade, become more involved in treaty scrutiny-thank heavens for that-but the extent of the scrutiny depends on the committee's other priorities and the demands on its time. Let us not forget that globalisation is one of the causes of the growth in both the volume and scope of treaty making.

Current practices rely largely on the sanction of political criticism, which all too often falls on deaf ears and which has no legal effect anyway on the Government's decision to ratify, so for some time there have been calls for parliamentary scrutiny to be enhanced. Specific proposals have been put forward in five Private Members' Bills in this House, starting in 1996 with the first of three Bills from the noble Lord, Lord Lester of Herne Hill. I see him in his place and I seize this occasion to applaud his tireless efforts in this matter. In his first Bill, he proposed, among other measures, the creation of a joint parliamentary treaties committee to keep Parliament informed about the implications of treaties and to consult the public about them. The report of the Royal Commission on House of Lords Reform, under the very able chairmanship of the noble Lord, Lord Wakeham, saw the potential merits of having a Select Committee of this House to draw our attention to any significant implications of a treaty before the end of the 21-day Ponsonby period. Similar proposals have been aired by your Lordships since then, but we have got nowhere, usually running up against the brick wall known as the Liaison Committee.

Now we have the matter before us again in Part 2 of this Bill, which, in effect, puts the Ponsonby rule on a statutory footing. I am not quite sure why that is necessary, as Governments have been complying with it for the past 86 years. Also, I sometimes have doubts about parliamentary procedures being enshrined in statute. Anyway, Clause 24, based on the Ponsonby rule, provides that a treaty is, as in the past, laid before Parliament for 21 sitting days, during which both Houses have the opportunity to resolve that it should not be ratified. If the 21 sitting days expire with no such resolution being passed by either House, the Government can proceed to ratify the treaty. If the other place resolves that a treaty should not be ratified, the Government cannot at that stage proceed to do so; they must instead lay a statement explaining why they still believe that the treaty should be ratified and then wait a further 21 days. If by the end of that period the other place has not withdrawn its opposition to ratification, another 21-day period ensues, with the Government re-laying their statement-and so on, I assume, until the cows come home. However, if this House, with all the expertise at its command, resolves during the initial 21-day period that a treaty should not be ratified, the Government simply lay a statement of disagreement and tell the Lords to get lost. Well thanks a lot.

Yet the European Union (Amendment) Act 2008-about which I know something-which ratified the Lisbon treaty, provides that before a Minister may consent in the European Council to the use of a passerelle under the treaty, both Houses must pass a Motion to approve the Government's intention. That concession was made by the Government in response

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to our insistence. It was an enlightened decision, but that spirit certainly does not imbue Clause 24 of the Bill. I do not wish to sound frivolous, but if the Government are sincerely looking forward to the day when this venerable House is wound up and replaced with a 300-member senate, they should realise that that body will not accept this sort of treatment. Therefore, why do the Government not get used to the idea now and do for Clause 24 what they did for the European Union (Amendment) Act?

Lord Lester of Herne Hill: I had not intended to speak but, as the noble Lord was kind enough to refer to me, I wonder whether he would agree with me about the oddity of treating this House as inferior when it comes to treaty scrutiny. It is very strange to do that when this House, with its distinguished former Foreign Office and legal experts, has greater expertise in the area of treaty scrutiny than perhaps the other place. Does he agree with me that this is very strange, as well as on the inequality that he has referred to under the treaty of Lisbon?

Lord Grenfell: My Lords, I agree 100 per cent with the noble Lord: it is because we have this expertise here that we have that special capacity to scrutinise treaties. I know that that has been the theme of his argument all the way through since his first Bill in 1996 and I am glad that he has raised this again.

I also plead that serious consideration be given once more to the creation of a Joint Committee of both Houses to scrutinise treaties. This is a matter for the two Houses, but we need an assurance from the Government that they would do nothing to discourage, let alone try to impede, such an initiative.

I have devoted almost all my intervention to one part of this portmanteau Bill, but I have done that to illustrate the dilemma that this House faces when confronted with reforms of constitutional importance that we are expected to simply nod through without proper examination and debate. It is a distressing situation and I deeply regret it.

Finally, among the many lost opportunities in the Bill, the absence of a provision to set up a statutory Appointments Commission, as noted in the amendment moved by the noble Lord, Lord Steel of Aikwood, is particularly unfortunate. I trust that my noble friend the Minister will give us a convincing explanation for the Government's reluctance to make provision for something that surely the whole House, and indeed the public, would warmly welcome.

6.26 pm

Viscount Astor: My Lords, to bring this major, 133-page Constitutional Reform and Governance Bill before this House at what can be described only as the fag end of a Parliament is a disgrace. I suppose one should not be too surprised as this Government have made more ad hoc changes to the constitution than any previous one in recent history. But interestingly, perhaps the most important pledge that the Prime Minister made in his first speech in that role in another place-his commitment to limit the power of the Executive to declare war-is not included in the Bill.



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In another place the Bill was subject to six procedure Motions curtailing debate and the Government added new provisions during the last two days of Committee. The Bill should have serious consideration in both Houses. Any idea that it can be agreed in the wash-up is ridiculous and, perhaps more importantly, unconstitutional. If we wish to attempt to restore the trust the electorate should have in Parliament, Parliament must be seem to behave in an open and honest way, not least in relation to a Bill which seeks to make fundamental changes to the way this country is governed.

When one looks at the provisions of the Bill in detail, the first few clauses relate to the Civil Service. The principle to put the Civil Service on a statutory footing is to be supported, but even a brief reading of the Hansard report of the Committee stage in another place shows that there are many issues that need clarification. The Government are not really clear on the definition of a civil servant-or at least the Minister in another place was not clear. Quangos are excluded-one can see the logic of that-but government-owned public corporations are also excluded. Why? More staff are now employed in public corporations than civil servants. The rights and responsibilities of civil servants should be set out clearly for the benefit of the people whose executive they administer. But the employees of public corporations are also public servants, and they should also be clear of their duties.

The proposed Civil Service Commission, whose commissioners, according to the Minister, are not civil servants, although they are appointed by the Crown, will have only to lay a report before Parliament. That does not seem to represent full, proper accountability, especially in the circumstances where the commission potentially has the ability to intervene in the way Ministers, and indeed Permanent Secretaries, run their organisations. What is more, looking at the numerous clauses in the Bill on Civil Service employment, one must wonder why these are not covered by ordinary employment law. The Bill includes clauses that stipulate that appointments to the Civil Service must be made,

Why? Are we to understand that is not the case now? It seems to me that it has been the case since the Northcote-Trevelyan report of 1854, so why does it need to be enshrined in legislation now?

The details of ratification of treaties also need scrutiny. It is a fundamental change in the way in which the country is able to enter into international agreements. Despite its importance, it has not been made clear during the passage of the Bill how it will affect the United Kingdom's ability to conduct foreign relations.

Next on the list is the removal of the by-election system for hereditary Peers. It is of course a ridiculous system; it was a compromise; it was never supposed to last; it was set up and agreed as an interim measure. However, that it has survived so long is the fault not of the opposition parties but of the Government, who have not come forward with any proposals. I agree that this House has become too large. It is second in size only to the Chinese national party congress. We

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are the only bicameral country with a second Chamber that is larger than the first. We need reform, but not like this.

Then we have the clause that one can describe only as the "Lord Mandelson clause", allowing Peers to return to the Commons. I did not realise that the noble Lord, Lord Mandelson, was still vying for the leadership of the party and is so missed by his colleagues in the Commons. What a tribute to his skills as Lord President. All I can say is that it is good try, but it will not succeed. If one accepts a life peerage, until reform, it is for life-no going back, pay full UK tax and stay here until reform or retirement. This House should not become an interim, mid-career resting place for passing politicians.

Then we have the proposed referendum on voting, which is an attempt by the Government to bind the next Parliament and to commit the next Government to a constitutional reform of the highest significance. I am surprised that the issue has not been brought out more by your Lordships today. If there is to be a fundamental change, it should be in a party manifesto that comes before the electorate at the election, not just tagged on at the last minute to this Bill. The alternative vote system proposed by the Government will mean that, instead of the most popular candidate being elected, the least unpopular sneaks in. However, that may just be a personal view.

One part of the Bill-I think that it is the only part-to which I can give some support is the right to demonstrate in the vicinity of Parliament. I understand concerns about noise and access to Parliament, but the right to demonstrate is central to our democracy and we need to support it.

This Bill will never have a proper Committee stage in your Lordships' House- there is no time. I have to say that I wonder why we should give it a Second Reading tonight.

Lord Tunnicliffe: My Lords, for the guidance of the House, the average length of Back-Bench speeches has been ten and a half minutes. If that continues, we will get to the speech of the noble Lord, Lord Tyler, at 10.30 pm. If we to revert to an average of eight minutes, we will get to the winding-up speeches, started by the noble Lord, Lord Tyler, at 9.30 pm.

6.33 pm

Lord Goodhart: My Lords, I shall do my best to stick to the eight-minute limit. I shall talk about a couple of matters that should be in Part 5 of the Bill but are not.

First, I believe strongly that all future Members of your Lordships' House, whether appointed or elected, should be here for a limited term of office. It is a matter of real importance. Peerages are no longer awarded as honours; it is a long time since anyone saw an honours list which included them. Peerages, whether they are party appointments or Cross-Benchers, are awarded, or are supposed to be awarded, to people who can and will make genuine contributions to the work of your Lordships' House. Members appointed as Cross-Benchers are usually appointed because of expertise. They have expertise as medics, or in running

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charities, or as senior officers of the Armed Forces, or as trade unionists, or diplomats, or in a number of other fields-including, perhaps, lawyers. They contribute greatly to the work of your Lordships' House. Although I believe that party Members should be elected, I hope-contrary, I have to say, to my party's policy-that we can retain a suitable proportion of Cross-Benchers as appointed Members. The speech of the noble Lord, Lord Pannick, a few minutes ago was a good example of the benefits of having Cross-Benchers present here.

However, expertise has a use-by date. I should like there to be long terms of service in your Lordships-perhaps a suitable term would be 15 years. After 15 years, surely it is time for Members to give way to other people whose expertise is likely to be more recent. This is not a matter of ageism. Term limits would also make it easier to appoint young people as Members of your Lordships' House. We need more young people; we are desperately short of them in your Lordships' House and have been so for a long time. However, it must surely be unsatisfactory to appoint a young man or woman aged 35 who would be entitled still to be a Member of your Lordships' House 50 years later. Term limits would also help to reduce the excessive number of Members of your Lordships' House at any one time. Term-limited Members should be allowed to continue use of the title that they are given, either as a Peer or a senator, after the end of term. I would not apply term limits to those who are already Members of your Lordships' House, partly because life membership may have been an important factor in their accepting a peerage and partly because I would want a Bill providing for term limits to have at least some chance of success in your Lordships' House.

Term limits should apply also to political nominees, whether they are there by appointment or, as I hope, by election. For as long as political Members continue to be appointed, the reasons for having a term appointment seem much the same for political Members as for Cross-Benchers. It is desirable to have a reasonable rotation of Members. For myself, I think that by the time I have served for 15 years in your Lordships' House, which will be in about two and a half years, I will probably have contributed about as much as I can. Whether I will retire at that point, if I am still alive and compos mentis, is likely to depend on whether another Liberal Democrat may be appointed to succeed me.

Among those who want politicians to be elected rather than appointed there is a fairly general consensus that those who are elected should serve for a single, long and non-renewable term. This would give greater independence from party Whips, as Members would not have to worry about their reselection. I support the right under Clause 56 for Members to resign from your Lordships' House, but-and it is a big "but"-only on a condition which is not included in the Bill. That condition is that Members who resign are not entitled to stand for election to the House of Commons for at least five years after their resignation. This is intended to prevent your Lordships' House being used by ambitious young politicians as a stepping stone for the House of Commons, which would be disastrous for your Lordships' House. On this, I find myself for once in agreement with the noble Lord, Lord Henley.



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I turn finally to another, quite different part of the Bill. Part 9 consists mostly of Schedule 10. I am interested in that part because it mainly amends parts of the Constitutional Reform Act 2005, an Act with which I was very closely involved. The amendments seem reasonable and not, so far as I can see, controversial. The main purposes of the amendments in Schedule 10 are, first, to remove the role of the Prime Minister, who under the 2005 Act has the role simply of a postman, passing on to Her Majesty recommendations from the Lord Chancellor for appointment to the Supreme Court or to the offices of President or Deputy President of the Supreme Court. The second purpose is to give greater confidentiality to medical reports on candidates for judicial office, so that the medical report goes straight to the Lord Chancellor and is not seen, as it now is, by members of the Judicial Appointments Commission. That, too, seems entirely reasonable.

The third purpose is to extend existing powers to disclose confidential information obtained in the course of the appointment process to cases where the disclosure is made for preventing crime or for purposes of criminal investigation. The Explanatory Notes do not explain why this is thought to be necessary; but if a satisfactory explanation can be provided, that too seems perfectly reasonable.

The fourth purpose is to give effect to a recent agreement between the Lord Chancellor, the Judicial Appointments Commission, the Lord Chief Justice and the Magistrates' Association that the Judicial Appointments Commission will not take responsibility for the selection of magistrates. This was a matter of concern at the time the Act was enacted, and I think it is now seen that it is not appropriate for the JAC to take over that responsibility.

Clause 66 contains some sensible and necessary provisions about salaries for members of tribunals. If the Bill gets to wash-up, I suggest that Part 9 should go through. I cannot say that it causes much excitement among the voters, but it seems to me to be straightforward, sensible, and does some good and no harm. I have done just past the eight minutes.

6.40 pm

Lord Armstrong of Ilminster: My Lords, this Bill is an example of a trend which has become rather prevalent in the handling of legislative proposals. The Government put together a number of more or less disparate and unrelated subjects into a single, large and unwieldy Bill-a sort of portmanteau, as some people have described it. They give it a veneer of respectability with a cover-all title, burden it with an over-long Long Title, and drive it through in a manner which effectively denies Parliament the opportunity for the sort of effective scrutiny which Parliament ought to be able to provide for public legislation of this importance.

What we have today is a process of legislative indigestibility. What we are considering today ought to be not a single portmanteau Bill but a baker's dozen of separate and single-issue Bills. If we could revert to a regular process of single-issue Bills, it would act as a kind of control filter on the flood of legislation. We should have perhaps less legislation but more Bills, better prepared and better drafted legislation, and better scrutiny and improvement of Bills in Parliament.

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The balance between the executive and the legislative arms of the state would be improved. The effectiveness and the reputation of both Houses of Parliament would greatly benefit. I seriously commend these thoughts to those who are looking for better governance and for useful measures of desirable parliamentary reform.

The Bill which we are considering today has received a drubbing from the Select Committee on the Constitution. We are told that:

"It is inexcusable that the Government should have taken so long to prepare this Bill that it has effectively denied both Houses of Parliament-and especially this House-the opportunity of subjecting this important measure of constitutional reform to the full scrutiny which it deserves",

and:

"We consider it to be extraordinary that it could be contemplated that matters of such fundamental ... importance as, for example, placing the civil service on a statutory footing should be agreed in the 'wash-up' and be denied the full parliamentary deliberation which they deserve".

A number of noble Lords have made the same point this evening. I say "Hear, hear" to that, with the special sense of deprivation felt as one of the independent Cross-Bench Peers who have no possibility of exerting even indirect influence on what goes on in the washroom.

It is on the Civil Service clauses that I should like to concentrate this afternoon. As it happens, the proposals for putting the Civil Service on a statutory footing have had more prior consideration and scrutiny than most of the rest of the Bill. We have, after all, had time to think about this subject since the idea of legislation was first mooted by Northcote and Trevelyan 150 years ago. As Talleyrand said:

"Surtout, pas trop de zèle".

We got through that 150 years because the principles and conventions which we are now proposing to legislate have been agreed and accepted as principles and conventions by all parties in Parliament and in the country. We have not needed to have them legislated because they have been generally accepted. I accept that the time has come, sadly, when we cannot rely on that degree of acceptance, and the time has come for legislation on the lines proposed.

In recent years, we have had several attempts to bring forward legislation on this. The Public Administration Committee produced a Bill in another place; and the noble Lord, Lord Lester of Herne Hill, has produced one in this House. Now at last the Government have brought forward their own legislative proposals, but not as a self-standing Bill, as should have been done, but as one element in this portmanteau-I nearly said ragbag-of a Constitutional Reform and Governance Bill.

The Government's proposals reflect a great deal of previous thinking and discussion on this subject. In general, I and, I believe, my noble friends and successors in the office of head of the home Civil Service welcome them. We think that they are not quite as good as they could be. A number of amendments put forward in another place, including some by members of the Public Administration Select Committee, were not selected and deserved to be considered.

If the Bill were going into Committee in this House, as it should be, there would be several amendments which my noble friends and I would wish to invite

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your Lordships to consider. We think, for example, that the role of special advisers should be more strictly defined and circumscribed. We consider that the power to appoint heads of mission in the Diplomatic Service otherwise than on merit should be clearly and strictly limited. We would like to see the Civil Service Commission given the right to initiate investigations of breaches of the Civil Service code, subject to consultation with the head of the Civil Service.

We think that the requirements on the duties and responsibilities of civil servants in relation to Ministers need to be balanced by requirements on the duties and responsibilities of Ministers in relation to civil servants. We accept, however, that that may be more appropriately dealt with in the ministerial code than in this Bill, though perhaps the principles of the ministerial code itself should in due course be put on a statutory footing.


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