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Below the most senior Civil Service posts it is important, as the noble Lord, Lord Armstrong, said, that departments are able to manage staff in the most efficient and effective way, in accordance with their business needs and the requirements set out in the Civil Service Management Code. The current framework puts a clear obligation on departments and enables the Minister for the Civil Service to develop and change the requirements as necessary. I have to tell the Committee that there is no evidence that the current arrangements are failing or that stronger regulation of the arrangements for internal promotion is necessary. Furthermore, current arrangements allow for internal management flexibilities-for example, for temporary promotion or urgent deployment, which may occasionally be

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required for the effective conduct of public business. So, we do not think that the case has been made for that amendment.

I turn finally to Amendment 5. I thank the noble Lord, Lord Norton of Louth, for his praise of special advisers. They are, certainly in my experience and, I know, that of other Ministers, much appreciated in the various departments in which they serve. The noble Lord's amendment would introduce a new clause, the effect of which would be to allow all Ministers, even those as lowly as me, to appoint up to two-or more with the approval of the Prime Minister-special advisers. I was immediately attracted by the amendment, but I must resist it. The Ministerial Code already makes it clear that, with the exception of the Prime Minister, Cabinet Ministers and those Ministers who regularly attend Cabinet may each appoint up to two special advisers, and that all appointments require the Prime Minister's approval. The Ministerial Code does not permit all Ministers to appoint special advisers. Provisions in the Ministerial Code provide the appropriate mechanism to regulate the number of special adviser appointments. We also publish an annual report on special adviser costs and numbers and were the first Government to do so. Transparency about numbers and costs provides for accountability. The provisions in the Bill will maintain this. I ask the noble Lord not to press the amendment.

Lord Norton of Louth: My Lords, I am very grateful for the Minister's response to the amendments, particularly for his response to Amendment 1. That is the most important amendment in the group because of the duty it imposes on the Minister for the Civil Service and the impact it may have on the Civil Service in relation to Parliament. From the point of view of Parliament itself, it is an extremely important amendment. I am therefore extremely grateful to the Minister for accepting it.

I take some of the points that have been made and I am grateful to noble Lords who have contributed to the debate, not least the noble Lord, Lord Armstrong of Ilminster, my former university chancellor. I am also grateful to some of his successors who have been in touch with me prior to the debate. I am grateful for the Minister's responses. I make two points in terms of my gratitude: one is what is placed on the record in response to some of the amendments. The other point touches on what the noble Lord, Lord Rooker, said earlier, that there will be an opportunity to come back to some of the points embodied in the amendments. Although there are drafting issues, some of the central points of what the amendments are getting at are important and worth coming back to. Indeed, from what the noble Lord, Lord Armstrong, was saying, I suspect that one of the amendments may prove acceptable to him with the removal of one word-"not"-in relation to that amendment. There will be an opportunity to review some of these issues in the way that the Minister has touched on. I am grateful for that response and content with what he has said. In the light of his acceptance of Amendment 1, I beg to move.

Earl Ferrers: My Lords, before my noble friend withdraws his amendment-



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The Lord Speaker (Baroness Hayman): If the noble Earl will forgive me, it may assist the Committee if I say that the noble Lord, Lord Norton, has moved his amendment. As I understood it, the Government signified that they were going to accept it. However, I do not want to interrupt the noble Earl.

Amendment 1 agreed.

Clause 3, as amended, agreed.

Clauses 4 to 9 agreed.

Amendment 2 not moved.

Clause 10 : Selections for appointments to the civil service

Amendment 3 not moved.

Clause 10 agreed.

Clauses 11 to 14 agreed.

Amendment 4 not moved.

Clause 15 agreed.

Amendment 5 not moved.

Clause 16 agreed.

Clause 17 : Agreements for the Commission to carry out additional functions

Amendment 6 not moved.

Clause 17 agreed.

Clauses 18 and 19 agreed.

Schedule 2 agreed.

Debate on whether Clause 20 should stand part of the Bill.

Lord Bach: I argue that Clauses 20, 21, 22 and 23 should not stand part of the Bill. We think that for appropriate reasons this part of the Bill should not be pursued this evening.

Clauses 20 disagreed.

Clauses 21 to 23 disagreed.

Schedule 3 disagreed.

Clause 24 : Treaties to be laid before Parliament before ratification

Amendment 7 not moved.

Clause 24 agreed.



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12.45 am

Clause 25 : Extension of 21 sitting day period

Amendment 8

Moved by Lord Norton of Louth

8: Clause 25, page 14, line 24, at end insert-

"( ) The Minister shall normally exercise the power under subsection (1) except in the case of treaties that he deems to be minor, technical or incremental adjustments to existing treaties to which the United Kingdom is a signatory."

Lord Norton of Louth: My Lords, I shall speak also to Amendments 9 and 10, also in my name, relating to the parts of the Bill dealing with treaties.

On the amendment, I recognise the importance of transferring the power to ratify treaties to Parliament. It is not restoring power to Parliament. It is giving a power to Parliament that it has not had before. I welcome the transfer. However, one of the issues is to give effect to the transfer in meaningful terms. There is no point giving a power to ratify treaties if Parliament lacks the time and resources to examine a treaty in some detail. This is a point that I made to the Lord Chancellor, Jack Straw, when he appeared before the Joint Committee on the Draft Constitutional Renewal Bill.

We need to create the resources, not least through the establishment of a Joint Committee on treaties. If the Commons is not interested in creating such a committee, then we need to set up a Lords committee. That is a matter for us. However, for that committee to do its job requires time. For a substantial treaty, that will normally mean more than 21 days from when the Minister lays the treaty before Parliament. In such cases, the power to extend the period should be employed.

My amendment is designed to ensure that treaties get the extra time, unless the Minister deems them to be minor, technical or incremental adjustments to existing treaties to which the United Kingdom is a signatory. Many treaties will fall into those categories. I believe that some 30 or so treaties are ratified each year. I suspect that most fall into these categories. I do not think that many will cause problems in terms of being classified in the way that I have suggested. This will be clear to the Minister's advisers as well as to the members of a committee on treaties.

This amendment is therefore designed to ensure that treaties receive sufficient time, depending on their significance. I believe that it helps firm up the intention behind this part of the Bill. It is one half of the solution. The other half is in the gift of Parliament in creating a Joint Committee.

Amendment 9 is fairly self-explanatory. Clause 26 provides that Clause 24 does not apply if a Minister of the Crown is of the opinion that, exceptionally, the treaty should be ratified without the requirements of that clause having been met. It stipulates what steps the Minister has to take as soon as is practical after the treaty has been ratified. My amendment is to ensure that before exercising his power, the Minister has to make every reasonable effort to consult the chairman of the Foreign Affairs Committee of the House of Commons and the chairmen of such other committees of either House or Joint Committees that he considers appropriate.



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Amendment 9 is drafted in such a way that if a Minister cannot track down the chairman of the Foreign Affairs Committee or chairmen of other committees that does not prevent him going ahead with ratification. The amendment creates no bar. What it imposes is an obligation on the Minister to make every effort to consult within the limited time available. That is a sensible way to proceed. The amendment enables the Minister to alert the chairman of the Foreign Affairs Committee and other chairmen of the importance of the treaty and the need for ratification under subsection (1), and to get a response. It is up to the Minister as to what account he takes of the response he receives.

I regard this as a common-sense provision which imposes a duty on a Minister without tying his hands when the need to seek ratification is urgent.

On Amendment 10, it is normal practice for an Explanatory Memorandum to accompany a treaty. I would argue that that is best practice. Given that the power to approve ratification is being given to Parliament, it is essential that such a memorandum should accompany each Bill.

I appreciate that Clause 24 provides-as does Clause 26-that a treaty may be ratified if a Minister makes a Statement to Parliament indicating that they are of the opinion that the treaty should nevertheless be ratified, and explaining why. However, the Bill should stipulate that there should be something more than a Statement, which may be little more than a formal explanation. When the Commons rejects one of our amendments, it has to give reasons. Those reasons are not necessarily enlightening. My amendment provides that an Explanatory Memorandum must accompany a treaty, explaining the provisions of the treaty, the reasons for the Government seeking ratification and such other matters as the Minister considers appropriate. It is not an onerous requirement, but if Parliament is to do its job effectively, it is a necessary one. It imposes an important discipline and takes us beyond the wording of Clauses 24 and 26. I beg to move.

Lord Tunnicliffe: My Lords, I will speak also to Amendments 9 and 10. We have listened to the persuasive arguments of the noble Lord, Lord Norton. I hope my words on Amendments 8 and 9 will be of comfort and that he will not press them. The Government are content to accept Amendment 10.

The Government have consulted widely for nearly three years on the proposals to enhance parliamentary scrutiny of treaties. Following a public consultation on the subject, clauses included in the draft Constitutional Renewal Bill were considered in detail by the Joint Committee established for pre-legislative scrutiny, of which the noble Lord, Lord Norton of Louth, was a member. While the Government added Clause 25 to the Bill in response to the Joint Committee's recommendation that there should be a mechanism for considering requests to increase the period available for scrutiny beyond 21 days, the committee's report agreed with the Government that,



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The noble Lord's amendment seeks to amend Clause 25, which describes the mechanism for extending the period of scrutiny and provides that the Minister shall normally use that mechanism except in cases where he deems the treaty to be a minor or technical amendment to existing agreements. The amendment would create a presumption that the scrutiny period for treaties will be longer than 21 days, rather than that the extended period will be the exception.

It is current practice under the Ponsonby rule to extend the sitting-day period whenever possible where a request is made through the established channels or by a Select Committee for more time to scrutinise a treaty. In fact, requests for extension are not the norm. This point was recognised by the Joint Committee when it concluded that 21 days would be sufficient in the vast majority of cases. As is evident from the addition of Clause 25 to the Bill in response to the pre-legislative scrutiny undertaken, the Government stand by their previous commitments. I see no sound case for amending the Bill to make extending the scrutiny period the norm. In addition, I note that the amendment is unclear on what should count as minor, technical or incremental adjustments to existing arrangements. Putting such obscure criteria into the Bill would leave the Government open to criticism, and would offer no discernible benefit beyond the Government's current proposals. For these reasons, I hope that the noble Lord will withdraw his amendment.

Clause 26 provides that, in exceptional circumstances only, the provision setting out the normal process of formal parliamentary scrutiny may be disapplied. Clause 26 also states that if exceptional procedures are invoked, the responsible Minister must lay a Statement before Parliament explaining his reasons for departing from the normal procedures. The noble Lord's amendment would require the Minister to consult the chair of the Foreign Affairs Committee and any other committee he considers appropriate before invoking exceptional circumstances. In 2000, the Procedure Committee of another place, in recommending against the setting up of a Commons sifting committee specifically to deal with treaties, stated that the appropriate role for the other place in relation to scrutiny of treaties was to draw upon the established expertise of the departmental Select Committee. It recommended that the Foreign and Commonwealth Office send every treaty subject to ratification to the relevant Select Committee along with its Explanatory Memorandum. The Government accepted this recommendation and it is now routine practice. In addition, in their response to the committee's report, the Government gave an undertaking to provide an opportunity for debate on any treaty involving major political, military or diplomatic issues if the relevant Select Committee and the Liaison Committee so requested.

It is clear that the Government are committed to working with whichever committee Parliament decides to establish. Nevertheless, I believe that the noble Lord's amendment ties the hands of the Executive unnecessarily. It is not simply tautologous to say that the cases in which it is envisaged that Clause 26 will be used are by their very nature exceptional; the Government need the flexibility to respond to factors outside their

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control or to urgent situations as they develop. This amendment would require the Government to consult the Chairman of Committees before acting in all cases, even if such a delay would adversely affect the Government's ability to secure the nation's interests. It is not for nothing that flexibility is inherent in the Ponsonby rule-albeit a flexibility which both Conservative and Labour Governments have resorted to on only a handful of occasions over the past 60 years.

The Government will naturally strive to ensure that the chairman of the Foreign Affairs Committee and relevant Select Committees are apprised of matters that concern them in a timely fashion. The Government already do so as a matter of course. Not only is this amendment unnecessary but it would apply a rigid procedure when the uncertain nature of events makes a flexible approach the only sensible one. Under the clause as it stands, there is already a safeguard in that the Minister is under a duty to explain to Parliament his reasons for departing from the norm. This is the appropriate means of dealing with these exceptional cases, and I urge the noble Lord not to press this amendment.

Finally, Amendment 10 would place in statute a requirement for every treaty laid before Parliament to be accompanied by an Explanatory Memorandum explaining what the treaty is about and why the Government believe it should be ratified. Under the Ponsonby rules, since 1997 the Government have consistently laid an Explanatory Memorandum at the same time as laying a copy of every treaty. We fully intend to continue this practice and are therefore content to place this requirement on the statute book and accept the noble Lord's amendment.

Lord Norton of Louth: We worked up to the good news. Perhaps I may run through the three amendments. Amendment 8 was designed to change the onus, so in effect it would not make much difference. I think it is important that the onus is placed there but I hear what the noble Lord says.

On Amendment 9, I do not particularly agree with what the noble Lord has argued because the amendment would not place a rigid requirement to consult; it would require the Minister to make every effort to get in touch with and consult the chairman of the Foreign Affairs Committee and other relevant committees. Therefore, it would not necessarily impose a limit on the Minister by preventing him going ahead, as the noble Lord suggested it would. I think he said that in normal circumstances the Minister would make such an effort. I think it is quite valuable to have that duty imposed on the Minister, but it is a duty to make the effort to get in touch and to make every reasonable effort; it is not a rigid imposition. Therefore, a failure to make contact would not bar the Minister from proceeding in the way indicated in the clause. That may be something that we want to look at again in the future.

On Amendment 10, I am extremely grateful for the Minister's response. Given the changes that have been made, I think it is useful to have such a provision in the Bill because it sets out a clear duty. If the House is going to have to consider treaties in order to ratify them, it will be helpful to have the sort of information that is extremely useful for that purpose.



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In the light of that, and having heard what the Minister has said, we may want to come back to some of the issues but I am grateful for his acceptance of Amendment 10 and beg leave to withdraw Amendment 8.

Amendment 8 withdrawn.

Clause 25 agreed.

Clause 26 : Section 24 not to apply in exceptional cases

Amendment 9 not moved.

Clause 26 agreed.

Clause 27 agreed.

Amendment 10

Moved by Lord Norton of Louth

10: After Clause 27, insert the following new Clause-

"Explanatory memoranda

In laying a treaty before Parliament under this Part, a Minister shall accompany the treaty with an explanatory memorandum explaining the provisions of the treaty, the reasons for Her Majesty's Government seeking ratification of the treaty, and such other matters as the Minister considers appropriate."

Amendment 10 agreed.

Clause 28 agreed.

The Deputy Chairman of Committees (Lord Geddes): My Lords, I am advised by the government Front Bench that its intention is to oppose the Question that Clauses 29 to 37 en bloc do not stand part of the Bill; namely the whole of Part 3 will be removed. Therefore, it may be for the convenience of the Committee if noble Lords do not wish to move their amendments. Of course, it is always open to any noble Lord to move an amendment standing in his or her name.

Clause 29 : Referendum on voting systems

Amendment 11 not moved.

Amendment 12

Tabled by Lord Tyler

12: Clause 29, page 15, line 40, leave out "31 October" and insert "30 May"

Lord Tyler: My Lords, I do not intend to move Amendments 12, 13, 14, 16, 18, 19 and 20, but I and my noble friend Lord McNally wish to speak briefly to Clause 29 stand part, which is part of this group.

We were enormously impressed by the sagacity, eloquence and persuasive skills of the Lord Chancellor and Secretary of State for Justice in not only changing his mind on the whole issue of electoral reform, but in persuading so many of his colleagues in the other place that it achieved the highest majority for a matter of any substance in this Parliament.

I would be remiss if I did not reiterate the point made by the noble Lord, Lord Campbell-Savours, which has been made on a number of occasions in this

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House. That is a matter for the other place and we agree that it may well be sensible not to press for this clause, at this stage, at this time of night, to be the subject of lengthy discussion in this House. However, we will look with great interest to see whether the "un-noble" Lord Chancellor and Secretary of State for Justice will be able, with his usual eloquence and persuasive skills, to persuade the other place to do an amazing U-turn. Having so eloquently persuaded them in one direction, no doubt he will be equally persuasive in presenting the case for doing a major U-turn. We would have been quite happy to push this through, even at this stage, but we recognise that at this time of night that is not likely to be the case.


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