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As a result of these discussions, I hope that we will meet the clearly expressed will of the House earlier today to proceed with all the remaining clauses. For the convenience of the House, the Government intend that the following clauses should be left out of the Bill. They are: Part 1, "The Civil Service Etc", Clauses 20 to 23 and Schedule 3; Part 3, "Referendum on Voting Systems", Clauses 29 to 37-all of this part; Part 5, "The House of Lords", Clauses 53 to 58 and Schedule 8-all of this part; Part 7, "Public Order", Clause 61 and Schedule 9-all of this part; Part 8, "Human Rights Claims Against Devolved Administrations", Clauses 62 to 64-all of this part; Part 9, "Courts and Tribunals", Clauses 65 to 67 and Schedule 10-all of this part; Part 10, "National Audit", Clauses 68 to 82 and Schedules 11 to 14-all of this part; and Part 13, "Miscellaneous and Final Provisions", Clauses 88 and 89 on referendums and Clause 91 on Electoral Commission accounts.

Once again, on behalf of the Government I thank all noble Lords who participated in the helpful discussions today. All sides of the House were impressed by the suggestion made by my noble friend Lord Rooker today that there should be post-legislative scrutiny of this Bill. Speaking for the Government side, I can say that, if we are in government at the relevant time, it would be our intention to do that.

Lord McNally: My Lords, I thank the Minister for his courtesy in clarifying the situation. For the benefit of the House, I shall also clarify that we are in agreement with everything that he read out except in relation to Part 5, for the special reason that we believe that it is the equivalent to what they are doing down the other end of the Corridor in giving teeth to the new discipline for this House. We think that it is a great tragedy that it should be dropped. However, we will argue that case when we get to Part 5.

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I take this opportunity to thank the Minister and the Lord Chancellor, who I thought at one stage was going to get arrested for either loitering or soliciting, so much was he around the Corridors of this place. As to what was raised earlier, we now have the good red meat of this constitutional reform Bill and we thank the Minister for the hard work that he did in getting us to this point.

Lord Strathclyde: My Lords, I, too, thank the Minister and the Lord Chancellor for the constructive way in which they approached discussions. I also thank the noble Baroness the Leader of the House for what she said earlier today when we had the debate about the whole wash-up process. We have signed up to this agreement, as we have to the whole of the wash-up. I know that there is concern about one of the clauses in Part 5, on the expulsion and suspension of Members of Parliament who have behaved badly. It is not vital that it should be passed today. If we are the next Government, we will certainly wish to find an early opportunity to put this right.

Lord Trefgarne: My Lords, as one of those who was involved in the discussions on this matter, I express my appreciation for what has been agreed. As I have said before, I regret that a Bill of this magnitude should be subject to this difficult procedure right at the end of the Session, but that is a discussion for another day and I have nothing more to say on the matter.

Clauses 1 and 2 agreed.

Schedule 1 agreed.

Clause 3 : Management of the civil service

Amendment 1

Moved by Lord Norton of Louth

1: Clause 3, page 3, line 26, at end insert-

"( ) In exercising his power to manage the civil service, the Minister for the Civil Service shall have regard to the need to ensure that civil servants who advise Ministers are aware of the constitutional significance of Parliament and of the conventions governing the relationship between Parliament and Her Majesty's Government."

Lord Norton of Louth: My Lords, I shall speak also to Amendments 2, 3, 4 and 5 in my name. I shall try to speak briefly to each one.

With regard to Amendment 1, I served on the Joint Committee on the Draft Constitutional Renewal Bill. We recommended in paragraph 281 of our report that there should be a wider duty on civil servants to Parliament, alongside the duty to serve the Government of the day. Although some civil servants were sceptical about the practicality of enshrining such a duty in legislation, Jonathan Baume of the First Division Association acknowledged that the Civil Service had,

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12.15 am

There was a not discouraging response from the Lord Chancellor, Jack Straw. He said that he was,

However, when the Government's response to the report was published a year later, it argued that the Civil Service Code makes it clear that civil servants have to act in a way that retains the confidence of all those with whom they have dealings, including Parliament.

This, though, does not quite meet the point; it is not sufficiently specific in relation to Parliament. My concern is that senior and other civil servants are not sufficiently well versed in the role and duties of Parliament, not least in calling government to account. There are occasions when civil servants have clearly overlooked Parliament in taking a particular action and not fully appreciated the need for the department to keep Parliament informed.

Given the problems in putting a duty to Parliament in legislative form, I have opted instead to place a duty on the Minister for the Civil Service to have regard to the need to ensure that civil servants who advise Ministers are aware of the constitutional significance of Parliament and the conventions governing the relationship between Parliament and Her Majesty's Government. This avoids the drafting problem while imposing a specific requirement on the Minister. It is not an onerous burden, but it is an important one.

I do not believe that the wide responsibility to Parliament should be subsumed under some wider provision in the Civil Service Code. There should be a duty on the Minister to ensure that senior civil servants are aware of the role of Parliament. That would be wholly beneficial in terms of the relationship between government departments and Parliament. It may be helpful to Ministers if their officials are well versed in the relationship.

I turn to Amendment 2. Under the existing provisions of Part 1, the Civil Service Commissioners may conduct investigations only when a complaint is made to them. The Public Administration Committee in the other place, the Civil Service Commissioners and the Joint Committee on the Draft Constitutional Renewal Bill have all recommended at some point that there should be provision for the commissioners to carry out investigations into the operation of or compliance with the Civil Service Codes without a specific complaint being made and without the consent of the Minister for the Civil Service being required. As the Joint Committee on the Draft Constitutional Renewal Bill made clear, in order to avoid undue pressure on resources or any risk of politicising the role of the commissioners, the provision should make it clear that the use of this power should be limited to instances where the commissioners consider there is sufficient evidence to warrant an investigation. My amendment incorporates this point.

In their response to the report of the Joint Committee, the Government argued that such a provision was unnecessary-commissioners could approach the Cabinet

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Secretary with complaints passed to them from other sources-and that it would risk the commissioners being diverted by politically motivated or vexatious correspondence. They also raised the resource implications of such investigations. One could argue against that that the commissioners are not there to act as a post box and, given their independence, should be in a position to undertake investigations only where there is merit in doing so.

The commissioners responded to the Government's concern in a letter to the Public Administration Committee of the other place last October stating:

"Despite some concerns about the potential for politicisation and resource implications, the Commissioners recognise that there may be occasions where it would be right for the Commission to carry out such an investigation: if there were clear evidence of a significant breach of the Code. We would therefore support an approach which gave the Commission, in addition to the duty to consider a complaint from a civil servant, the discretion to investigate matters at its own initiation. We would envisage that the Commission would want to exercise the discretion only in cases where the burden of suspicion was substantial".

Given the attention given to this issue by the Public Administration Committee, the Joint Committee on the draft Constitutional Renewal Bill and the commissioners, there is a case for following the recommendation of those bodies. The case for the new clause is therefore persuasive.

I turn to Amendment 3. Clause 10 provides that appointments to the Civil Service must be on merit, on the basis of fair and open competition. However, certain exceptions are provided in subsection (3). Subsection (3)(a) excepts persons selected for appointment to the Diplomatic Service either as head of mission or in connection with their appointment as governor of an overseas territory.

The Joint Committee on the draft Constitutional Renewal Bill recommended that the exceptions should be precisely that-exceptional-and should require the direct approval of the Prime Minister. The Public Administration Committee in the other place has gone further and proposed that the number to be appointed under this provision be limited to three. As the committee argues, the exemption as it stands is far too widely drafted.

Although the Government have undertaken to use the exemptions only rarely, it is important that there is a limit and that it is put on a clear statutory basis. As the Public Administration Committee argues, the Diplomatic Service deserves statutory protection as much as the rest of the Civil Service. My amendment is not original, but rather that which members of the Public Administration Committee tabled in the other place but which there was no time to debate. The case for that amendment also is clear and compelling.

Amendment 4 deals with promotion on merit. As the Bill is drafted, only appointments to the Civil Service are covered by its provisions. Clause 10(2) provides that the person's selection must be on merit on the basis of fair and open competition. There is no requirement in the Bill for promotion within the Civil Service to be on merit. The amendment seeks to rectify this by including such a requirement. The new clause requires promotion within the Civil Service to be on merit, with the Civil Service Commission's involvement in promotions to the 200 most senior

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posts. The commission has to give approval for promotion to a post within this category and may participate in the process for promotion.

The need for such an amendment has been recognised by the Public Administration Committee in the other place. It has been recognised also by the Civil Service Commissioner, who wrote to the Public Administration Committee, stating:

"It is a generally accepted principle that civil servants are not only appointed on merit, but are also promoted on merit. As you know the Commission believe that Civil Service legislation offers the opportunity to enshrine this principle in statute, and to provide for regulatory oversight of its application".

My amendment gives effect to that.

I turn finally and briefly to Amendment 5, addressing the issue of special advisers and how many may be appointed. I begin by acknowledging the value of special advisers-indeed, a number of my graduates have served as special advisers. They have a particular and valuable role to play. The problem in recent years has been that some have become too much part of the public face rather than the unseen face of government.

The provisions of the Bill in respect of special advisers are welcome, but they fail to place a limit on the number that may be appointed. I recognise that there are arguments on both sides. If one stipulates a maximum number that may be appointed by a Minister, that number becomes the norm. Against that, there is clear concern about the growth in the number of special advisers, especially political special advisers as distinct from expert advisers. There is a case for placing some limit on the numbers, both for political and financial reasons.

My new clause provides that the number of special advisers to be appointed by any one Minister be limited to two. That is a reasonable number in terms of ministerial needs and the burden on the public purse. However, I appreciate that there may be exceptional circumstances, in the case of a Minister with particular disabilities, for example, or of a Minister with a particularly wide range of responsibilities. The clause allows that, in such exceptional circumstances, the Prime Minister may authorise additional special advisers. He may also do so where a Minister wishes to appoint a policy expert rather than a political adviser. The new clause thus strikes the right balance. It is designed to impose a useful discipline, but not to act as a straitjacket.

I join others in paying tribute to the Minister on the progress that we have made on the Bill. I offer the amendments as a way of improving this section of the Bill, which I think we all recognise is extremely important. I beg to move.

The Earl of Onslow: My Lords, I shall be extremely brief, since we are debating 163 amendments at half past twelve in the morning. I put my name to these amendments because the noble Lord, Lord Norton of Louth, is a wise man and because they sum up to me my idea of what the Civil Service should be. Amendment 1 personifies what Northcote Parkinson says-sorry, I mean the Northcote-Trevelyan rules, although Parkinson's law has entered into this quite a lot. It helps to maintain the culture of what is behind the amendments.

On Amendment 2, it is surely reasonable that you should not have to wait for a complaint to investigate something if you know that it is reasonable. That, I

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think, is a reasonable point to make. On Amendment 3, the noble Lord is right: the number of Lord Halifaxes in America or Paul Boatengs in South Africa should be limited to two. I must admit that I thought that promotion on merit was automatic and axiomatic. It was Macaulay, I think, who introduced a whole system copying the exams for the Indian Civil Service from the Chinese mandarinate. There is value in the points made about special advisers, but I know that there are slight difficulties in the words "any one Minister" and various things like that, so perhaps the amendment will not be accepted in full. I have put my name to these amendments and I have tried to be as brief as possible. I shall now sit down.

Lord Armstrong of Ilminster: My Lords, perhaps it would be convenient if I also spoke to the five amendments. I do not want to comment on Amendment 1. I should have been prepared to go along with the proposals dealt with in Amendment 2 and the investigations into the code of conduct by the commission if the consent of the Minister had been required for the exercise of such an investigation. Without that, I do not think that I favour it; I could not support that amendment.

Amendment 3 would limit to three the number of people who can be appointed otherwise than on merit in senior diplomatic service appointments. I support that amendment and would be happy to see it passed. On Amendment 4, it is of course already the principle that promotion in the Civil Service is on merit, but I do not think that it should be made statutory. Promotion differs from appointment in that it is very much a management matter and, although it should be on merit, there will be cases when that has to be qualified. There are such things as horses for courses, and it may well be that a candidate for promotion to a particular appointment is not suited to that appointment-it would not suit him or he would not suit the appointment. Management must be free to take that into account. If these proposals on promotion on merit are put into statute, there will be a raft or flood of appeals on promotions, which would hold up the process of promotion and make management a great deal more difficult. I could speak at greater length about it, but I cannot support Amendment 4 and I hope that the House will not accept it.

Amendment 5 deals with the number of special advisers. As the noble Lord, Lord Norton of Louth, has suggested, the danger of fixing the maximum of two per Minister is that everybody will go up to the maximum. I am conscious of that danger, but it makes sense to have a limit on the number of special advisers. I should myself have settled for one, with the safeguard that the noble Lord, Lord Norton of Louth, has proposed for the Prime Minister to have discretion to go above that in particular cases, but I would not object to Amendment 5 if the House were minded to accept it.

12.30 am

Lord Tyler: As one who served with the noble Lords, Lord Armstrong and Lord Norton, on the Joint Committee on the draft Bill-which, it is perhaps appropriate to remind your Lordships, reported in

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July 2008; there has been a long period during which its conclusions could have been acted upon by the Government-I want particularly to say a word about Amendment 5, with which I have a great deal of sympathy. The Minister may recall that the Joint Committee exercised considerable concern on the issue of special advisers, and I think that that concern remains in many parts of your Lordships' House.

I am not sure whether the amendment proposed by the noble Lord, Lord Norton, meets all of the Joint Committee's anxieties, but I ask the Minister to take very seriously the concerns that have been expressed this evening on the issue. It may not be that this amendment precisely meets all of those concerns, but somehow or other the way in which special advisers are appointed and their number-which has grown so dramatically in recent years, not least of course in No. 10-is a matter of considerable public as well as parliamentary concern. I hope that the Minister will address that point.

Lord Bach: My Lords, I thank the noble Lord, Lord Norton of Louth, for moving the amendment. I also thank him for the part that he played in this afternoon's discussions. I shall deal with the amendments as briefly as I can. On Amendment 1, we agree that it is very important that,

that govern,

In short, we accept the amendment. I am grateful to the noble Lord for moving it.

I am afraid that I cannot be quite as helpful about the other amendments. Where Amendment 2 is concerned, we have considered this carefully in the light of evidence in pre-legislative hearings on the draft Bill, and the recommendations of both the Public Administration Select Committee and the Joint Committee on the draft Bill. We also noted the Joint Committee's view that the proposal should not place any additional undue pressure on the resources of the commission or risk politicising its role. We are concerned, as the Government, that such a provision would risk the commissioners being diverted by politically motivated or vexatious correspondence, which would, in turn, have resource implications about which the commissioners themselves had voiced concerns, as well as the potential for politicisation.

Civil servants can already take complaints or concerns directly to the Civil Service Commissioners, who can then investigate and make recommendations. I emphasise that this will continue under the provisions. The commissioners can also approach the Cabinet Secretary with complaints or concerns raised from other sources. The Cabinet Secretary has always taken seriously any approach from the commissioners if there is a concern which needs investigating. I am advised that the commissioners feel no restraint under the legislation about raising concerns with the Cabinet Secretary. Under the Bill, the Minister for the Civil Service and the commission would be able to agree that the commission should carry out additional functions in relation to the Civil Service.

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It is also the case that the commission has undertaken an audit of departments in handling complaints under the Civil Service Code. I can tell the Committee that a further audit is planned for April 2011. In the light of that work, the Government, in consultation with the commissioners, will consider whether further amendments will be required to legislation.

Amendment 3 relates to the exceptional circumstances as far as the Diplomatic Service is concerned for heads of mission. It would require the Secretary of State to inform the Civil Service Commission of an intention to use the exception to fair and open competition to appoint an individual to the Diplomatic Service as head of mission or governor of an overseas territory. It would also limit to three the number of individual appointments to such posts at any one time. The Joint Committee on the draft Bill recommended that this exception should be limited to exceptional circumstances and should require the direct approval of the Prime Minister. The committee said:

"If the Prime Minister wishes to make political appointments to senior diplomatic posts in exceptional cases, he should be able to do so, but he must be politically accountable for any such decisions".

As the Committee knows, this exception has only ever been used very sparingly. It will continue to be used only on an exceptional basis and to require the direct approval of the Prime Minister. The Government also commit to making any such appointments public. I hope the fact that I have said those words in Committee today will be some comfort to the noble Lord when I tell him that I am afraid we cannot accept his amendment. We do not think it is necessary in these circumstances.

Amendment 4 in the noble Lord's name deals with promotion in the Civil Service. These amendments would put promotion within the Civil Service on the same footing as recruitment into the Civil Service, with promotions regulated by the Civil Service Commission. As the noble Lord, Lord Armstrong, reminded us a moment ago, the principle of promotion on merit is a mandatory requirement, set out in the Civil Service Management Code, which forms part of the terms and conditions of employment of all civil servants. The current role of the Civil Service Commission is to regulate recruitment into the Civil Service. At the request of the Cabinet Secretary, the commissioners are involved in moves within the top 200 appointments, including promotions. This role would continue under the legislation.

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