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I shall confine my remarks more generally to Part 1 of the Bill, dealing with the Civil Service. Speaking as a former head of that service, I follow what the noble Lord, Lord Armstrong, said about those provisions. I strongly support them. If they could reach the statute book they would put an end to a discussion which began some 150 years ago. There is a slight disagreement about how long it is, depending on whether you make your calculation from when the Northcote-Trevelyan report was submitted or implemented. There was a deferral at that time because Mr Disraeli opposed the proposals-he was a strong supporter of patronage. I do not intend to follow him in what I say.
I believe that the noble Lord, Lord Clark of Windermere, was the first person in recent times to express the Government's support for a Civil Service Bill, a few months after new Labour won power in 1997. As long ago as July 2000 in their reply to the Committee on Standards in Public Life, the Government made a firm commitment, collectively approved, that there would be such a Bill. As head of the service, I confirmed on behalf of the Government that there would be consultation on what the Bill would contain. In a speech made before I retired in 2002, I set out what it would cover. No one could call this part of the Bill rushed, except in the sense that it has finally come in right at the end of a Parliament.
I will briefly address two questions: why are these provisions in Part 1 needed and are they the right provisions? First, they are needed because, after decades of change and uncertainty-conditions which are set to continue-we need to be sure that those qualities of the Civil Service which have helped to make it the finest in the world are properly enshrined and protected, and not liable to be washed away and lost in a sea of relentless and sometimes impatient change. The report of the Fulton committee in 1968-on which the noble Lord, Lord Sheldon, who was in his place earlier, sat-was perhaps the start in modern times of continuous, some might say even Maoist, reform of the Civil Service. A great deal has been accomplished since then and much has changed, mostly without fuss. It would be tedious to go through a litany of those changes but it would also be unfair not to recognise how much has been done.
No Government own the Civil Service. Each Government, however rightly keen on modernisation, also have a duty of stewardship to respect those features of the service which are perennial-selection on merit, honesty and integrity, political impartiality and giving its best advice-and to leave it in a condition which will serve future Governments equally well. In return, the service is under an obligation to serve the Government of the day to the best of its ability, to support it in formulating its policies and to implement them excellently and energetically. In practice, that usually involves change. The service has never remained the same for long. That is the deal, but it must be based on respect for the fundamentals of the service. That is what Part 1 of this Bill is about. It is not about protecting
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Secondly, are the provisions in this Bill the right ones? In an imperfect world I believe that Part 1 has a pretty good shot at what is needed. Looking back at what I said in 2002 when I outlined what a Bill would contain, virtually everything is covered. I pay tribute to the sterling officials in the Cabinet Office who have patiently beavered away over the years under my successors in working up these proposals. I also pay tribute to the contribution of the Public Administration Select Committee in another place and to Dr Tony Wright. They have all prepared the ground well. As I said, this is not rushed legislation. The present Cabinet Secretary will be entitled to feel proud if Part 1 reaches the statute book on his watch.
Making the Civil Service Commissioners statutory, as Northcote and Trevelyan recommended, with powers to investigate, which are in the Bill, is hugely important. The battle between merit and patronage is never really over, and the commissioners are constitutional bedrock. In this connection, I note that a power is proposed in Clause 12 for the commissioners to make limited exceptions to the principle of selection on merit. That is sensible, but they must be in control. There must be no backdoor route for cronyism. Therefore, I am surprised to see in Clause 10(3)(a) a wholesale exemption from the merit principle for an appointment to the Diplomatic Service either as head of a mission or as governor of an overseas territory-a point which the noble Lord, Lord Wright, rightly raised. It is hard to see the reason for that exception. Is it really the case that such appointments are to be made on some basis other than merit? If so, on what basis? It would be much more sensible for any Government who wanted to make an appointment other than on merit to seek the agreement of the Civil Service Commissioners under the exemption in Clause 12, and I think that this provision could be dropped. I know that the Public Administration Select Committee said that up to three appointments could be made not on merit. I do not understand why it is all right to make three such appointments. Why not rely on the power of the commissioners?
I also welcome most warmly the regularising of the position of special advisers. I should like to speak for a moment in defence of special advisers. I think that most people in departments who have worked with them recognise that most do a job that is both valuable to the department and of use to the service. They play many different roles but it is wrong to represent the service as having been overrun by them. In my time-I believe that this is probably still the case-the Ministerial Code limited the number of special advisers to each Secretary of State to two. There may be exceptions-I remember that Mr Blunkett had one or two more to help him with his disability-but I do not believe that that has changed. The main places where there are more than two are the Treasury and No. 10. It is not fair to most of them that their role has become a matter of public interest and concern, but the simple fact is that it has. There have from time to time been
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I am particularly glad to see Clause 8(5), which specifies the things which a special adviser may not do. It is a late amendment but a very important one. I wonder whether the Government might also be prepared to amend Clause 16(4) so that the annual report to Parliament about special advisers contains information about their roles as well as their number and cost.
In conclusion, I hope very much that Part 1 of the Bill can reach the statute book and that all political parties will support it. It is a very important piece of potential legislation. It is tantalising that we have something so precious so close to achievement after so many years. I add my name to the list of those who are deeply unhappy about the way that the Bill has come forward so late in the day but I hope that this part will survive the wash-up.
Lord Norton of Louth: My Lords, like the noble Lord, Lord Williamson of Horton, I served on the Joint Committee on the draft Constitutional Renewal Bill. The Joint Committee worked extremely hard, holding two two-hour sessions each week over a three-month period, in order to report by the end of July 2008. The energy and commitment of the committee was clearly not matched by that of the Government. Despite having considerably more resources than those of the Joint Committee, the Government took a year to respond to the committee's report and to introduce the Bill into Parliament. That was a delay for which we have received no persuasive explanation-indeed, as far as I can see, no explanation at all. When the Lord Chancellor appeared before the Constitution Committee last month, I put it to him that there had been a massive gap between the report of the Joint Committee and the introduction of the Bill. His reply was:
It is important that this House is not swept away in that water. What we are confronted with is not only a Bill of constitutional significance but also, as we have heard throughout today, an issue of process that is of constitutional importance. The primary task of this House is legislative scrutiny. It is our job to examine Bills in detail and to ensure that the provisions fulfil the intended purpose of those Bills. Our reputation-and, in large part, our legitimacy-rests on our capacity to fulfil that task.
Given that, what do we do with a Bill of constitutional import that is having a Second Reading only days before the likely end of the Parliament? It is a Bill that could and should have been brought before Parliament at a much earlier date, that was slow in being taken in Committee in the other place, that was loaded with new government clauses towards the end of its passage in the other place, and that was subject to time limitations both in Committee and on Report. Many important amendments that MPs, including members of the Public Administration Committee in the other place, wished to discuss were never considered.
The deficiencies with the process are all too clear, yet the Government appear not to fully appreciate this and to believe that much of the Bill can be agreed in the wash-up. This morning, the Constitution Committee received a response from the Government to its report on the Bill. The letter from the Minister, Michael Wills, is silent on the reason for the delay in introducing the Bill, adopts a completely Commons-centric approach, and makes statements such as:
The Government appear to have had no qualms about letting the Bill get to this late stage, apparently on the assumption that it will go into the wash-up. The Lord Chancellor, in his evidence to the Constitution Committee, said that particular provisions would have priority in the negotiations in the wash-up. The Leader of the House of Commons has gone further, saying that if it goes into the wash-up,
I invite the Minister, in replying, to put on the record that the responsibility for where the Bill has reached rests solely with the Government. Perhaps he will also tell us what provisions are demonstrably those "that the public want". By "demonstrably", I mean where there is clear empirical evidence, not some spurious assertions of the sort the Minister advanced this afternoon. Perhaps he will also put on the record that it is not, in any event, the task of either House simply to nod through what the public want. Indeed, we know that the public would not expect it. Surveys, not least that carried out by Ipsos MORI for the Constitution Unit in 2007, show that what the public want is a House of Lords that considers legislation "carefully and in detail". That is what 73 per cent of those questioned want. That is what we are being denied the opportunity to undertake-careful and detailed scrutiny.
We are being denied that opportunity not least because of the presumed convention that a Bill that completes its passage in one House and is given a Second Reading in the other is then eligible to be considered in the wash-up. The genesis of this convention is unclear and its rationale is unsustainable. A convention is only such when those who are affected by it accept that it is necessary to abide by it in order to make the process work efficiently and effectively. Even if the Front Benches have been parties to it, it is not clear why the House should be bound by it. We make much of the fact that we are a self-regulating House, but on occasion we appear to abdicate that responsibility.
I advance the proposition that we should not accept that because a Bill has reached Second Reading, that makes it automatically eligible for going into the wash-up. That applies especially where the Bill is of constitutional significance, has been subject to time limitations in the
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What, then, do we do? There are two options. The clearest and most sustainable in terms of principle is that the Bill does not go into the wash-up or that we do not accept anything emerging from it. The other is to agree only those provisions which are either small, uncontested clauses, where no queries have been raised about their substance and drafting, or provisions which have already been considered in detail by the Joint Committee on the draft Bill or by the other place and where the need for the provision is compelling and could not be left to be implemented through a Bill in the next Parliament. If we are persuaded that some substantial provisions may be considered, then we should apply sunset clauses to those provisions.
Mitigating against any claim that the case for enactment is compelling is Clause 95. Few clauses take effect upon enactment. Eighty-one clauses will come into force on such days as Ministers may by order appoint. Mitigating against any claim that the provisions have been examined in depth are the reports of the Constitution Committee and the Delegated Powers Committee. The report of the former makes clear that core parts of the Bill, as on the Civil Service, were subject to partial scrutiny in the other place and that others were not considered at all. Both reports raise questions about the provisions of the Bill, questions that cannot be adequately addressed in the time remaining before the end of this Parliament. This Bill, as so many Members have said today, demonstrably requires further detailed consideration.
The onus rests on the Minister to justify why this Bill is only now before us and to demonstrate which provisions, if any, meet the criteria I have outlined. If he cannot do that, then I suggest that the best solution is for the two Front Benches to commit whichever party is returned at the election to reintroduce the Bill at the start of the new Parliament. Then, and only then, can we subject it to the thorough scrutiny that it requires and fulfil the fundamental role expected of us by the public.
Baroness Miller of Chilthorne Domer: My Lords, one of the great pleasures for me this evening has been the return of my noble friend Lord Phillips of Sudbury. It is a tremendous moment for me. I have often listened to him in debate and it gives me great confidence to pick up his theme at the end of his speech because I want to talk about Clause 61. It concerns the right to protest in Parliament Square. As my noble friend said, those restrictions were ostensibly imposed because of security risks posed by the possibility of bombs being hidden in Brian Haw's sleeping bag, but they were actually imposed because the Government were getting so embarrassed by and fed up with the continuing anti-war protests.
Like this evening's proposals, those provisions were passed in great haste without proper scrutiny. That led to the most ridiculous situation where the legislation required protestors to apply at Charing Cross police
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When Gordon Brown became Prime Minister in July 2007, he said that he would change the protest laws. What we have before us in Clause 61(1) is the realisation of that commitment. However, it is a typical Labour idea of a change. Clause 61(1) repeals what is unpopular and unworkable, but Clause 61(2) immediately replaces it. The Minister said that this change has broad public support. It does but, as the Select Committee on the Constitution states, we have to be wary of Part 2 because the new powers,
It makes an important point about the stark contrast between this approach, which gives the Secretary of State the power to have these orders, and the draft Constitutional Renewal Bill, which simply repealed the draconian SOCPA powers without replacing them.
The Delegated Powers and Regulatory Reform Committee also has great reservations. It does not believe that we should deal with this issue so lightly. It recommends that, if orders need to be made under Schedule 9, that must at least be done by affirmative procedure and not, as the Government propose, by negative procedure.
The Minister may say that the Bill states that the order may not apply to an area more than 300 yards from any entrance to Parliament and claim that that is an improvement. However, that effectively takes out Parliament Square, Old Palace Yard, Abbey Gardens, College Green, Victoria Gardens, Westminster Bridge and most of Whitehall-in other words, any place near enough to Parliament to make yourself seen and heard by parliamentarians arriving at Parliament. Anyone who was outside today will have seen a large number of demonstrations and a large number of the press on College Green, who could almost be said to be more aggravating to get through than all the demonstrators put together. Parliament cannot be said to be at the heart of our democracy when ringed around by a cordon sanitaire. It is already removed enough from the real world. E-petitions and virtual protests are not a substitute.
The Minister knows as well as I do that there are sufficient powers under the Public Order Act to control demonstrations, marches and assemblies. There are also sessional orders to control access to Parliament. We also extended the powers in the Terrorism Act, which gives the police extremely wide powers to stop and search, including in the area around Parliament.
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The Earl of Sandwich: My Lords, I return to Part 5. It is already 100 years since noble Lords embarked on the first substantial reforms of this House and we are fast approaching the centenary of the Parliament Act, which made major changes to the powers of the House. Since then, we have had a succession of attempts, culminating in the 1999 Act, which at times have appeared to come very close to a conclusion. I am one of a substantial group in the House who would like to have seen all the sensible provisions of the Steel Bill implemented and fully discussed in this Bill-not as a last throw of the present Government but as a reasonable, practical way forward for this House. I pay tribute to the noble Lord, Lord Norton, for all that he did for the Steel Bill and for the advice that he has again offered to the Government this evening.
The Government have not only missed this opportunity but, as others have said with more authority, after five White Papers and numerous reports they have offered up an extraordinary hotchpotch of legislation that offends against every convention of the House-"mismanagement" was the term used by my noble friend Lady Boothroyd. It seems that, for the lack of a Committee stage, even the welcome provisions derived from the Steel Bill may not survive the wash-up. I fully concur with the judgment of the Constitution Committee. I am sure that by now the noble Lord, Lord Bach, is among those who are sorry, if not ashamed, at his own party's performance. The burden falls on him personally to explain to his very senior noble friends what has happened.
As a so-called excepted hereditary Peer, I should like to say a word about the group of 92 men and women who have been lined up, for more than 10 years, to walk the plank. It is surely time that the by-elections were ended, the sword of Damocles lifted and the rest of us allowed to continue our work in peace. After years of family service-in my case, nearly 350 years this summer-and after a contribution of considerable time, experience, colour and vitality to the work of the House, as we have seen this evening, it is disparaging to hear ourselves referred to in a casual and negative way. Phrases such as "ending the hereditary principle" easily slip into "withering on the vine", "dying off" and even "killing off". Such comments, whether made here or in the media, have been harmful to a significant group of noble Lords who represent, perhaps, one in five of the active working Peers in the House. Hereditary Peers do not complain very much and keep their heads down-perhaps for self-preservation-but there is no doubt that without them the work of the House would come very nearly to a standstill.
I of course accept that there has been a small but vocal minority of hereditary Peers who would like to delay the reform process-I thought that a few of them might turn out today-but they have a point;
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I have no faith in Mr Straw's many times half-baked proposals to phase in an elected House. We already have an elected House and our constitution requires that we should respect the role of the Commons and not compete with it. I cannot see why the House should waste any more time on such proposals when we already have a mainly efficient and effective second Chamber that commands public confidence, another point made by the noble Lord, Lord Norton.
I should, however, like to see the provisions in Clauses 54 and 55 on suspension and removal enacted; I would go further than Clause 56 on resignation; and, like my noble friend Lady D'Souza, I would include fuller proposals for retirement, which in the long run-perhaps with modest financial inducements-would help to reduce the size of the House. I regard the establishment of a statutory independent Appointments Commission as an urgent matter, as do the noble Lord, Lord Steel, and many other noble Lords who have spoken. The Minister will have to explain why the Government cannot keep to their promises and why this important element has been left out or consigned to the never-never land of Lords reform. When will the parties agree to give up the system of patronage?
In conclusion, I take up a point mentioned by the noble Viscount, Lord Astor. I was a member of the Constitution Committee in 2006 and 2007 when it published its reports on war making-HL 236 and the follow-up HL Paper 51-proposing a new interpretation of the royal prerogative vested in the Prime Minister. The committee is quite right to remind the Government that they still have not revised let alone published the draft resolution that would give Parliament a more formal role in the process of deploying our Armed Forces outside the United Kingdom. Again, can the noble Lord kindly explain why this is the case? Against the background of the Iraq war, this was an important concession from the Government; it must not be allowed to disappear just because of the passage of time and when another conflict may be around the corner.
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