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Those who have been defending the indefensible today are going to fall heavily into that dinosaur trap. That is what the Government want them to do. For decades there has been a growing consensus, inside and outside Parliament, on the need to put the Civil Service on a modern statutory basis, on the urgency of the next steps towards comprehensive Lords reform and, more recently, on the clarification of the parliamentary standards legislation. We should not let Ministers play more games with those proposals that have broad agreement. Given that there has been such strong support across the parties in the other place for so many of these remaining reforms, pontificating about constitutional outrage begins to sound very hollow.

The same applies to the AV consultative referendum. I happen to agree with the noble Lord, Lord Rooker, that the question that the Government have come forward with is not the one that we should be putting to the electorate. As he says, we should be following the New Zealand formula. If we do not get acceptance in principle, though, which is what a Second Reading is all about, then the public should be asked this question-not MPs, nor even Members of your Lordships' House. Then we can move to discussing what sort of questions should be put to the people.

Let us recall, as the noble Lord, Lord Campbell-Savours, said, that the biggest single majority in the whole of this Parliament, 178, was in the other place in favour of a referendum. It would be extraordinary if, led by the noble Lord, Lord Henley, and the noble Baroness, Lady Hanham, Members on these Benches were to deny the public's right to have a view on how they elect the other place, and to do so in this House.

I come to the point made by the noble Lord, Lord Howarth. After several days of being told that this House should not vote to stop the orders that we have seen in recent weeks, for us to do that on this issue would be quite extraordinary.

The public, who will be watching, would be outraged if this still unelected House-now or later, before or after the general election-stopped them from having their say on fair votes. If any Member of the House does not want a fair voting system, fine-let them vote in a referendum. I am sure we can permit them to do that. Let them persuade others that a system which gives a party 55 per cent of the seats in the House of Commons in return for 35 per cent of the votes should be kept. Let them try to argue that. Let them argue, too, that it is right that not one single Member of the current House of Commons enjoys the support of more than half of the people entitled to vote in that constituency-not one. That is surely an important issue for the public to consider, and it is right that they should be given that opportunity.

We on these Benches will consider carefully the case for getting that single vital change through. If we are given the necessary time, we will co-operate on the

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other elements where progress can and should be made. After interminable discussion, we could at least show the public that we are taking action to revive our democracy, and we will try to meet the crisis of confidence in Parliament. But if the whole Bill fails, the public will know that the Conservatives-unelected ones at that-stood in its way. It will also be all too obvious that this is exactly the outcome that Ministers were hoping for.

9.26 pm

Baroness Hanham: My Lords, it is quite clear from the many speeches that we have heard from around the House that the Government have, by pushing ahead with this legislation at this late stage of their life, introduced a largely unadmired dog's dinner of a Bill, with serious procedural flaws. There have been fascinating speeches and, while I cannot hope to mention all those who have spoken, I will pick up some of the points as we go along.

First, on the constitutional issues, the most glaring comments were those about the damning report of the Constitution Committee-"damning" was the word of the noble Lord, Lord McNally. The right reverend Prelate the Bishop of Durham suggested that nobody had thought through the constitutional changes. That was picked up by many other speakers this afternoon and this evening. The noble Lord, Lord Pannick, a member of the committee, ended his contribution by saying that the wash-up procedure was not suitable for this Bill. That was underscored by other speakers. The noble Lord, Lord Grenfell, said that the Constitution Committee was right to conclude that this Bill is no way to undertake the task of constitutional reform. The noble Baroness, Lady Boothroyd, expressed deep concern at the manner in which this Bill has been constructed and brought forward. My noble friend Lord Onslow said that he believes that the Government have acted with contempt for Parliament. This was a great collection of comments for a constitutional Bill.

While there are some sensible reforms in Part 1, on the Civil Service, as identified by my noble friend in his opening speech, they are limited in their effect, as others have said. My noble friend said that it omits the whole sector of quangos; it does not refer to them at all. My noble friend Lord Astor drew attention to problems on these clauses and the noble Lord, Lord Armstrong, was strongly of the view that the changes to the Civil Service needed further discussion, although the noble Lord, Lord Wilson, was more in favour of letting it all go through.

Parts of the Bill are nothing short of government grandstanding. The government colleagues of the Minister have produced those. My noble friend Lord Henley drew attention to the political gimmickry of those attempting to introduce, as an add-on to this hotchpotch of a Bill, a system of proportional representation for general elections. I listened with great interest to the noble Lord, Lord Rooker, who dissected and filleted the alternative vote, which I think we all agree would, by virtue of its principles of elimination and redistribution of votes, undermine the party system that is part of our democratic process. The noble Lord, Lord Howarth, said that it would ensure that the outcome of the election might well not reflect the wishes of the electorate.

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Far from providing a system to repair the status of MPs, as suggested by the Minister, it will serve only to muddy the water further.

There are, too, the Mandelson escape clauses in Part 5, which would tinker with the membership of this place but not improve it and would breach the undertaking given by the noble and learned Lord, Lord Irvine, on the hereditary Peers. My noble friend Lord Denham gave an authoritative exposition on the background to the undertaking, which recognised that a transitional House would still have the electoral system for the hereditary Peers. His views differed from those of the noble Lord, Lord Steel, but the noble Lord may not have been part of the original discussions.

Lord Campbell-Savours: Perhaps I may ask the noble Baroness a very simple question. Would a Conservative Government give priority to a constitutional reform Bill?

Baroness Hanham: My Lords, when the Conservative Government come in, they will be faced with a great many problems and I do not know where a constitutional reform Bill would fit in their considerations. I do not believe that the noble Lord, Lord Campbell-Savours, really expected an answer.

As I was about to say, we welcome Part 2, which allows parliamentary ratification of treaties. In the Commons, the Government introduced clauses in Part 4 making amendments to the Parliamentary Standards Act 2009. They were endorsed by my honourable friends in another place and, indeed, concern only the other place. I will therefore not comment on them further other than to note, as did other noble Lords, the point made by the Constitution Committee that the necessity of making so many changes to a law less than a year old demonstrates the inadvisability of making legislation in haste. Even though we are aware of the circumstances behind it, it is perhaps something for the Government to reflect on carefully, particularly as they have presented us with a Bill in the dying days of a Parliament that, if it got through, would make far-reaching changes but, as many noble Lords have said tonight, can never be subject to proper scrutiny in this place or the other. My noble friend Lord Norton of Louth underlined this; he also drew attention to the inordinate delays that have taken place, with the Bill having languished for months in the other place.

My noble friend Lord Henley made it clear that we do not think that Part 5 has been adequately thought through. Although a number of noble Lords have spent time discussing it, we do not believe that it has a place in the Bill. However, we think that Part 6 on the tax status of MPs and Peers is probably worthy of support. Indeed, my right honourable friend the leader of the Opposition has been pushing for something like this for some time.

We also support in principle Part 7. It repeals Sections 132 to 138 of the Serious Organised Crime and Police Act 2005, which had imposed restriction on access to Parliament Square. However, the Bill contains replacement provisions that are of concern. Schedule 9, referred to by the noble Baroness, Lady Miller, amends

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the Public Order Act 1986 by inserting new sections. The schedule applies to public processions or public assemblies where the route or assembly is being held wholly or in part within the area around Parliament. It provides that the Secretary of State may by order-this is a negative order-made by statutory instrument specify,

This order-making power is very broad. I would be grateful if the Minister could clarify how the Government intend to use those powers if they ever have the opportunity to do so.

My honourable friends at the other end tabled an amendment that drew attention to the sometimes obnoxiously loud noise that protesters make. It is regrettable that the Government did not make time for it to be debated.

I shall also mention Clause 90, which my honourable friends in the other place did so much to get into the Bill. It will ensure that the count starts as soon after an election as possible. I know that creeping delays, which were becoming prevalent in some areas, meant that election results were not available on polling night. That was of concern to members of all parties and it is good that the Government were able to work with the Opposition to introduce this clause. However, the Electoral Commission has drawn attention to the difficulties of ensuring that returning officers, who may have to change their arrangements so close to an impending election, have time to do so. It has just issued draft guidance to that effect.

Sadly, however, there has been too little of that spirit of co-operation in evidence in this Bill. The Government have been much more concerned with putting down the Prime Minister's pet dividing lines than they have with true and fair constitutional reform. The fact that the Government have chosen to proceed with this Bill to Second Reading in this House, thus ensuring that its provisions will be among those considered at wash-up-but at wash-up only, without allowing this House its normal time to scrutinise the legislation properly-means that even those areas where we may agree might not be in proper form for implementation or support. Twenty-eight clauses, or nearly a third of the Bill, were added to it without proper debate in the other place, where the Government control the business. They will get none here. As many noble Lords have said, the Government could have found time to bring the Bill here sooner but clearly chose not to.

Noble Lords, including my noble and learned friend Lord Howe of Aberavon, have said that this Bill should not be the subject of wash-up but should just fall. The noble Lord, Lord Pannick, gave a clear view on the limitations of wash-up, particularly on constitutional issues. We deplore how little time we have been permitted to scrutinise this Bill. It is absolutely inevitable now that this is the only opportunity that this House will have and it is for self-serving reasons that that is so. If the Government are unable to reach agreement on any or all of these provisions, they must know that they have only themselves to blame.



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9.37 pm

Lord Bach: My Lords, first, and quite genuinely, believe it or not, I thank all noble Lords who have spoken in this debate. I have not agreed with every word-not with many of them, actually-but the quality of the speeches has been great. The expertise that we have seen on Civil Service reforms around Part 1 of the Bill has been especially illuminating. It was great to hear the "second maiden speech" of the noble Lord, Lord Phillips of Sudbury; I think that I recall his first, some years ago. For him to see the Government kicked from pillar to post must have been as though he had never been away, but it was good to see him back and I hope that he is here to stay.

Next, I particularly enjoyed the refreshing speech of my noble friend Lord Graham of Edmonton. It was one that it was good to hear in this House and on the kind of subject that we have kind of shied away from, no doubt for good reasons. I listened with bated breath for whether the noble Baroness, Lady Hanham, or anyone else on the Conservative side would try to answer the points that he made so well, but I am afraid that answer there was none.

I shall turn to a couple of quick points before going onto the amendment tabled by the noble Lord, Lord Steel. At the very end, if I have time, I shall come back to the Constitution Committee's comments. The noble Lord, Lord Naseby, who is not in his place now and was never down to speak, asked me in the opening whether Part 4 undermines the independence of the trustees of the MPs' pension scheme. The answer is that the measures in Part 4 do not undermine the independence of the trustees. These provisions have been agreed with the trustees themselves; they will still be able to manage the assets of the scheme. In the other place we accepted a number of amendments put forward by the trustees. I said that I would answer the noble Lord's query and I have.

The noble Lord, Lord Tyler, made a refreshing speech, if I may say so. It was not so full of the-I almost said self-righteousness, but I dare not use that word in this House even at this hour of the night-strong feeling that was expressed throughout the debate. His speech was a welcome difference. He asked about war powers. I should point out that war powers were never in the draft Bill. The Government concluded that they should be dealt with by way of a parliamentary resolution, as recommended by the Constitution Committee.

I now come to my main point. The very severe criticisms of the Government today in a sense cover up the fact that a large part of the Bill is agreed by a large number of noble Lords in the House. The Official Opposition describe it as a dog's dinner of a Bill. The noble Lord, Lord Henley, criticised Part 6 on the tax status of Peers and presumably MPs, but it is worth reminding noble Lords opposite that on Third Reading of the Bill in another place, the honourable Dominic Grieve, shadow Secretary of State for Justice, welcomed large parts of the Bill.

He welcomed the move to put the Civil Service on a statutory footing; he welcomed the "Crown employment: nationality" provisions in Chapter 4 of Part 1; he welcomed ratification of treaties in Part 2; he welcomed the clauses relating to IPSA in Part 4; and he welcomed

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what he described as some sensible amendments in respect of the House of Lords, which we also welcome. He said that he awaited with interest how the other place responded to them. I do not know how he expected the Front Bench in another place to respond to them, but it was certainly different. He welcomed the tax status of Peers; he welcomed the human rights claims against devolved Administrations; he welcomed the work on judicial appointments; he welcomed the proposal to beef up the Comptroller and Auditor-General's national audit role; and not least, he welcomed Clause 37 and Clause 90 on overnight counting, adopted from an amendment tabled by the Conservative Front Bench.

Listening to a Front Bench spokesman on the Conservative side one could not believe that the shadow Justice Secretary, presumably officially on behalf of his party, welcomed all those many provisions. The truth is that the Constitution Committee in its report was not very critical of many of the parts of the Bill which it looked at. There is a lot of support for the Bill and-

The Earl of Onslow: Does the Minister not understand this vital point: constitutions are not changed by wash-up; they are changed by due process and by people, irrespective of the things with which I may or may not agree in the Bill? It should be done only by due process. In America, two-thirds of all states have to agree. We are doing this by wash-up. What a pathetic way of doing it.

Lord Bach: The noble Earl makes his point, which has perhaps been made ad nauseam today. It is a good point, which I shall deal with in my own time at the end of my remarks.

I want to deal with the amendment of the noble Lord, Lord Steel, and I genuinely praise him. He has had to put up with a great deal of frustration, I suspect, over the past two years as a consequence of reactions to his proposals, not just from the Government but from other parts of the House as well. He has worked tirelessly to modernise the House in this respect and we pay genuine compliment to him on his work. I cannot, though, support his amendment to the Second Reading tonight. He may not be surprised to hear this. Peers will have different views on this but, rightly or wrongly, the Government are committed to creating a second Chamber with a democratic mandate-one where the House is elected. We will, as I said, shortly bring forward concrete proposals for further reform.

If a reformed second Chamber were to be 100 per cent elected, an appointments commission-as I think the noble Lord, Lord Steel, said in his own speech-will obviously not be needed. However, if the House were, for example to be 80 per cent elected, any commission would need a different remit and different powers from the commission proposed by the noble Lord.

Lord Lea of Crondall: What is the earliest date that the new elected Members could possibly join this House?

Lord Bach: I am not in a position tonight to give details of the Government's proposals. Much as my noble friend may tempt me, I will not fall into that

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trap. The aim of the Government, if re-elected, would be substantial reform of the House of Lords in the way I have described.

My point was that any commission would need a different remit and different powers, which would have to be appropriate for a partly appointed House. This really is an issue that is best left to a properly reformed House. If it should turn out to be a partly appointed House, the issue of a statutory body arises then and there. I am sorry not to be able to support the noble Lord tonight. I appreciate what he and many of his supporters around the House-I accept that he has many supporters on this point-have said.

I will now deal as quickly as I can with some of the major points raised on the Bill. Part 1, on the Civil Service, is one of the crucial parts of the Bill. Many noble Lords-I will not name them all-spoke to this part. There was general agreement that this reform was not only very long overdue, but-as importantly in a way-that the Government had pretty well got it right. Certain noble Lords had concerns about parts of it but, on the whole, it was seen as not a bad attempt.

The noble Lord, Lord Armstrong of Ilminster, said that he would like to see the PASC amendments made to the Bill. He mentioned the amendments to Part 1 recommended by PASC in another place. The noble Lord will, I hope, be pleased to hear that we tabled an amendment in the other place which places restrictions on the activities of special advisers. This mirrors amendments put forward by PASC. If I may say so in passing, I was delighted that the noble Lord, Lord Wilson, made some favourable comments about special advisers. My experience as a Minister in several departments is that, by and large, special advisers do a very good job and the civil servants who work alongside them think so, too.

The noble Lord, Lord Armstrong, criticised the fact that heads of diplomatic missions are excepted from recruitment on merit. I know that there is a lot of feeling about that. The noble Lord, Lord Wright of Richmond, and other noble Lords mentioned this. I say this about diplomatic appointments: the exception which allows appointments to certain senior diplomatic posts has only ever been used very sparingly. I think that was also said in argument in the debate. It will continue to be used only on an exceptional basis and will involve the direct approval of the Prime Minister.

The noble Lord, Lord Maclennan, also spoke on this issue. He raised the issue of the commissioners' involvement in promotions within the Civil Service. The Bill attempts to replicate existing practice in that field. He also raised the issue of the commission having the power to conduct investigations into potential breaches of the code, irrespective of whether a complaint had been made. There was considerable discussion on this in pre-legislative scrutiny of the draft Bill. The Government strongly echo the Joint Committee's views that the proposals should not place any undue pressure on the resources of the commission or risk politicising its role.

I wish to move on, due to limited time, and say how much the Government are grateful for the support that they have had at least on that part of the Bill.



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On ratification of treaties, one or two noble Lords-not many-thought that noble Lords should be afforded power to veto ratification of a treaty. The noble Lord, Lord Grenfell, who has a lot of experience, suggested that, and other noble Lords discussed it. I am afraid that we do not agree. The House of Lords has a vital role to play in providing expert advice on treaties, but I have to be blunt: legislation should reflect the primacy of the House of Commons as the elected Chamber. The matter was considered by the Joint Committee on the Draft Constitutional Renewal Bill, which agreed with the Government's proposals as they concerned the balance of power between the two Houses.

My noble friend Lord Grenfell asked: will the Government support the setting up of a parliamentary Select Committee? The Government are not opposed in principle to a Joint Committee or Select Committees on treaties if there is sufficient support. It is for the Houses to decide upon the development and operation of such arrangements. There is no need to legislate to set up such a committee. Nothing in the Bill would preclude it.

Why are the Government putting the Ponsonby rule on the statute book? The answer is that the Government are of the view that the present arrangements for parliamentary scrutiny of treaties should not only be placed on a statutory footing but strengthened to give legal effect to a negative resolution in another place. Part 2 achieves that purpose.


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