A councillor said to me that he runs a council with a budget of more than £500 million a year and he is paid £28,000 per annum. The noble Lord, Lord True, is probably a good example of someone in that position. It is a full-time job, and the councillor and the noble Lord are not alone in that. Many people have no income other than that provided with this job, and running a council is a job. Many councillors are not full time but they devote a large amount of time to their council. My noble friend Lady Hanham said that they may be here today and gone tomorrow, but what better reason for them to have some form of pension, however small? These people are giving their time when they are not able to contribute to a pension, and the fact that in many cases they are transitory adds to the argument for them having something of substance to fall on when they get older.

I make no apology for also referring to the insult and lack of understanding from the right honourable Grant Shapps when he said that the work that councillors do is the same as volunteering to run the local Scout troop. I do not want to undervalue the leaders of Scout troops but that comment shows complete ignorance. It is demeaning and insulting, and, quite honestly, it is idiotic to make that comparison. What do councillors of all parties and no parties do? They do a valuable job which takes a great deal of time, and the idea that one can take away or reduce pension rights seems quite unfair.

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Various figures have been quoted for how much this is costing. I am not sure now what the correct figures are but one that I was given was that countrywide 18,000 councillors cost £3 million. Whether it is £3 million, £5 million or £8 million is irrelevant; it is fairly modest in terms of national expenditure. I should like to compare it to the cost of the 651 Members of Parliament of up to £10 million a year. It seems quite wrong that the other place can take away pension rights when they themselves will enjoy pension rights of much greater substance.

I said that I started work at Barnet Council 28 years ago. As the noble Lord, Lord Bourne, said, that was a time when one received a tiny attendance allowance of £20 if one turned up at a meeting. Life has moved on in terms of how people are attracted to the scheme. The point was made that a percentage of people are not in the scheme. That is their choice because it is a contributory scheme. People can make the choice that they do not wish to contribute to a scheme albeit that the local authority will also contribute to the scheme. That is their choice. They make their choice because, in most cases, they have a pension from another source, they are affluent from another source or have inherited money from another source. However, that does not apply to all the people that we want to be councillors and running our local authorities, with expenditure of something like £500 million per annum.

Reference was also made to the concessions my Government have made. I look with amazement at how we regard such small droppings as concessions. We are told that rather than access to the scheme being withdrawn immediately—that was horrific on 1 April—we have a big concession that eligibility will be phased out as councillors are re-elected on 22 or 23 May. What a concession. It really is insulting. It has been agreed that local authority remuneration panels can agree to replace the pension provision with a cash allowance for councillors. My local Conservative council administration—I am chairman of its audit committee and am very involved—a little while ago decided to up the allowances by 54%. There was a public outcry and the allowances were very much reduced as a result. The public will not take cognisance of the fact that pensions have disappeared and that remuneration and allowances of councillors will be substantially reduced to take account of the fact that they are not contributing to a pension scheme. That will be regarded by the public in a very poor light and councillors should not be put into that position. The Government made a commitment that they would not criticise councils which decided to allow such payments. The Government may not criticise them but I am sure that many other people will.

This is devaluing the people who are running local government. As central government devolves so much more to local government, what message is going out to local councillors who do not have an outside income? Their efforts are being devalued by the Government, of which I am part, and I regret these regulations.

Lord Tope (LD): My Lords, I do not want to give the impression that this is turning into a Liberal Democrat debate, but I am grateful to my noble friend Lord Palmer of Childs Hill for introducing a little

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passion into what has so far been a calm and rational debate that rather belies the feelings out there in the country. I am also grateful to the noble Lord, Lord McKenzie of Luton, for giving us the opportunity to debate this issue—an opportunity which, for some reason, was not afforded in the House of Commons. We are the first and only part of Parliament to debate an issue which is causing considerable concern in the country.

During my 13 years as leader of a council—as we are all making these declarations, let me say that it was not in the last century—the most that I ever received as leader was £4,500 a year, and I was not then able to join a pension scheme. Frankly, it would not have been worth very much if I had. One of the things that I learnt early on was that one should never try to defend the indefensible. My sympathies go to the Minister who will have to reply to this debate, which is not of her own choosing. We all have great sympathy with her for having the task of trying to defend the indefensible.

For the last time in your Lordships’ House I declare my interest as a serving councillor, for a few more days, and as someone who joined my council’s pension scheme at the age of 60—an age when most people would think of starting to draw a pension rather than joining a pension scheme. In two weeks’ time I shall start to receive the handsome pension that I have earned in the 10 years since joining the scheme.

Lord Vinson (Con): I wonder whether the noble Lord would be kind enough to give way and clarify a point. If a councillor in the future does not wish to take part in a pension scheme, or is not allowed to, surely he could use the contributions that he would have made to buy a personal pension. Would that not alleviate the problem to some extent?

Lord Tope: I will come to that later, but yes, it has always been the case, and will remain the case, that a councillor, like any other individual, may join a private pension scheme and pay for it from such income as he or she may have. Of course that will remain the case. However, when these regulations are agreed, no councillor will have the choice of being able to join a local government pension scheme in future. That is the issue before us today.

In my 40 years as a councillor I have never known councillors of all parties to be so angry about a measure, and I use the word angry deliberately. There have been many occasions, perhaps too many, over those 40 years when councillors have been cross or angry with central government of all parties for political reasons—that is par for the course—but in this case it is personal because councillors feel personally about it. That struck me at a meeting which I attended not so long ago where the majority of councillors in the room—it was not my local authority; there were councillors from all over the country—were not in a local government scheme because many of their councils had decided not to admit councillors to it. They were, if anything, more angry—certainly they expressed more anger—than those who were in the scheme, perhaps because they did not feel inhibited by any personal interest. Let us therefore not underestimate the extent

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of the anger of councillors of all parties throughout the country, regardless of whether they have the opportunity to join a pension scheme or have availed themselves of that opportunity. It is real and profound.

We have had a good debate today even if it has been a little one-sided apart from the interventions by my noble friend Lady Hanham and, to some extent, the noble Lord, Lord Bourne. I shall not take time to repeat the excellent points that have been made, but I certainly echo and agree with most of them. They have been well made.

Before this debate I inquired for the first time of my own authority how many of my colleagues are in my local council’s pension scheme and how much it costs the council as I had no idea. I learnt that 29 of 54 Sutton councillors are members of the pension scheme and that for the last full financial year it cost the London Borough of Sutton £90,000 in employer’s contributions towards its councillors’ pensions. Although £90,000 is a significant sum—I shall certainly not refer to it as peanuts—when you compare it to the £26 million of cuts which my council still has to find in the next two years it is of rather less significance.

I should like to make more strongly a point which has already been made—that it is comparatively easy to sit in government departments in Westminster and decide to cut budgets by so many millions or, in this case, to reduce grants to local authorities in total by so many billions. I say that it is comparatively easy because it is a lot easier than sitting in a crowded room with a hostile public gallery composed of people who are directly affected by the budget cuts you have to make and deciding how to implement those cuts which are not of your choosing—cuts that you were never elected to make or wanted to stand for election to make.

We are rewarding the people who have to make those decisions—thank goodness it will not be me in the years to come—by taking away their right to join a workplace pension. What spectacular timing for my Government to choose to make those cuts. I think that that is why councillors of all parties are so angry.

I should like to spend a little time returning to the first contribution after the noble Lord, Lord McKenzie, from my former London Assembly colleague, the noble Baroness, Lady Jones. I also want to talk about the position of the Mayor of London and London Assembly members. I again declare an interest. I was elected to the London Assembly, as was the noble Baroness, Lady Jones, when it started in 2000. Unlike her, I also had the pleasure of spending hour after hour on what is now the Greater London Authority Act. This is the crucial difference between London Assembly members and councillors. The GLA Act 1999 recognised that Assembly members were full-time, salaried people and gave them the entitlement to join a pension scheme. In 2000, the Senior Salaries Review Body decided that the appropriate and best-value scheme for them to join was the Local Government Pension Scheme. As a London Assembly member I joined a pension scheme three years before I was allowed to join the scheme run by my local council. I did that because Parliament gave me the right to do so. I think that that is a significantly different position from that of the councillors, much as I agree with it.

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When the Government’s intention regarding this matter was originally announced, the GLA—the mayor and Assembly members—was not included. Incidentally, the announcement was tucked away at the same time as the announcement on the 2012 revenue support grant, on the last day of the 2012 Session. If we were burying bad news, that was the day to do it. The announcement did not refer to them, I think it was assumed, because of the GLA Act to which I have just referred. When the consultation came out, we were all astonished to see that it did refer to the London mayor and Assembly members. Most of us assumed—certainly I assumed—that it was a mistake in CLG and it would be recognised, corrected and would not persist.

However, it has persisted and we are now in the position that London Assembly members are to lose their right to join the Local Government Pension Scheme along with all councillors. However, they do not lose the entitlement to a pension scheme that they are granted under the GLA Act. We are now in the position that the Greater London Authority has to find an alternative pension arrangement for its Assembly members. It has to do that, regardless of these regulations. I have not been an Assembly member for some years and am not party to the detailed consideration that is being given to that point. However, I learnt that the GLA had inquired of the Prudential what it would cost for Assembly members and the mayor to join a scheme with similar benefits. The answer—certified, I gather, by the Government Actuary—was that it would cost more than double the current cost to the GLA. How on earth is that in the taxpayer’s interest? It is demonstrably not in the interests of the GLA, Assembly members or the Mayor of London. As this is supposed to be about taxpayer-funded pensions, I have to ask this question. I gave notice of this question and hope the Minister will explain how he believes that this measure is in the taxpayer’s interest.

The other point about the Mayor of London has already been made. It is always difficult to talk about the Mayor of London without immediately bringing to mind the two personalities that have so far held that office. Probably none of us is going to worry too much about their personal pensions and I suspect that they will not either. However, does anyone seriously equate the person who holds the office of Mayor of London with a volunteer? He is not obliged to be Mayor of London. He does not have to stand for election to become mayor—that is voluntary—but once he becomes mayor, is anyone seriously going to say that it is a volunteer activity? Of course it is not; that is nonsense. The man is paid a salary equivalent to that of a Cabinet Minister, and yet his pension rights are going to be changed—not taken away, because the law does not allow that, but changed to a much greater extent.

5.45 pm

I think that we have overwhelmingly made the case that these regulations are unnecessary. They have caused a disproportionate amount of anger in relation to the amount of benefit they bring to taxpayers or anyone else. It has sometimes been said that the fact that a relatively smaller number of councillors are members of the pension scheme is somehow an argument for

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abolishing the right to join it. I see it exactly the other way round. There is a reason why many members who may be able to join the pension scheme choose not to. Many of them will undoubtedly be on a relatively low back-bencher’s allowance and therefore the benefits to come from contributing to a pension scheme are pretty small. Many will still be in employment and no doubt in an occupational pension scheme and reasonably well taken care of. Some of them may be retired or semi-retired and already in receipt of a pension and it is therefore not in their interests to join a pension scheme for the relatively few years that they are councillors and the relatively small contributions they will make and the benefits they will receive.

However, for those who are doing a full-time job or a near full-time job, for which they receive a special responsibility allowance—particularly for those who are leaders of major councils or mayors of major cities such as Liverpool, Bristol, Watford, Bedford and so on—why should they not have the same rights that anyone else in a full-time job would have to be able to contribute to an occupational pension scheme?

My Government should not be proposing this unnecessary, mean and petty move. If the noble Lord, Lord McKenzie, presses the Motion to a vote—and I recognise that it is not entirely his choice—with considerable sadness, I will vote for it.

The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Stowell of Beeston) (Con): My Lords, I start by paying tribute to councillors and the work that they do. Unlike all noble Lords who have contributed to today’s debate, I have never been a councillor or worked in local government, but my granddad was a councillor in Beeston during the late 1940s and early 1950s. I never knew him but, when I was a little girl and out with my dad, older people in Beeston would often remark that they had known my granddad and tell me about some of the things that he had achieved for the people of Beeston. They never mentioned politics or his party, but they were very keen to reinforce that he had changed things for the better as a councillor.

Unlike me, other DCLG Ministers have direct experience of local government. All have been councillors and many of them have been leaders of councils; that includes my noble friend and respected predecessor Lady Hanham, who was leader of Kensington and Chelsea and also my noble friend Lady Williams of Trafford, who was with me on the Front Bench earlier. She takes her title from the council that she led. They know what it is like to be a councillor. They understand what it means to represent people locally and the importance of that role. They know that it extends from being at the front line of a national crisis, such as the recent floods, to spending hours every week listening to local people and doing what they can to help on matters that may seem minor to outsiders but are of major importance to those affected.

I had the privilege—and I do underscore that word—to hear my right honourable friend the Secretary of State Eric Pickles pay tribute to councillors with real enthusiasm at the LGA’s annual reception in Parliament only the other week. I have heard him in private in ministerial meetings, particularly during the flooding crisis, stand

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up for councillors and all that they were doing at that time. I reiterate to noble Lords and to the House this afternoon that everyone in the Department for Communities and Local Government understands and respects the work of councillors. All of us understand that councillors do all this excellent work voluntarily as elected representatives of local people.

This debate relates to the provision in the Local Government Pension Scheme (Transitional Provisions, Savings and Amendment) Regulations, which, as we have heard, excludes councillors and other elected local officeholders from membership of the new Local Government Pension Scheme. It may be helpful to highlight to noble Lords that those regulations also serve a broader purpose. In June 2010, the Government invited the noble Lord, Lord Hutton of Furness, to chair the Independent Public Service Pensions Commission. The purpose of the commission was to carry out a fundamental structural review of public service pension provision and to make recommendations on pension arrangements that would be sustainable and affordable in the long term. Further to the commission’s recommendations, I am pleased to be able to tell noble Lords that the new scheme for local government workers came into operation, on time, on 1 April this year. Importantly, the design of the new scheme will ensure that the large number of low-paid workers in local government will continue to have access to good pension arrangements that are affordable for them.

The new Local Government Pension Scheme, like its predecessor, is an occupational pension scheme intended for employees, who make a contribution alongside the employer’s contribution, which is paid by taxpayers. This Government do not believe that councillors, as representatives elected locally to hold town halls to account and to serve local people, should be in a pension scheme designed for employees. It is on this point of principle that Ministers take a fundamentally different view to the previous Administration. We do not believe it is right to blur the line between council staff and elected councillors.

That point has been heard before and has been referred to by noble Lords during the debate this afternoon; indeed, my noble friend Lady Hanham reinforced the point in her contribution. Contrary to the contributions of noble Lords today, it seems that the vast majority of councillors agree with this Government, because only 16% of councillors in England are part of the Local Government Pension Scheme. To put it another way, only 30% of those eligible to join are members of the scheme. This Government want all councillors to have the full opportunity to demonstrate, as the vast majority already do, that they are independent and not reliant on the municipal payroll.

We made our position clear when we first announced the proposals in December 2012. I was not going to make this point, but as my noble friend Lord Tope said with tongue in cheek that this was a good day to bury bad news, it is worth reminding noble Lords that he said that because the previous Government announced their decision to provide access to the Local Government Pension Scheme on the day of 9/11. I hope that my noble friend is not seriously saying that the last working day before Christmas—a day when we were in any

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case publishing the local government financial settlement in documents which all people interested in local government activity were waiting for—is the same as 9/11. When we announced our intentions, Ministers indicated the Government’s view that councillors’ ongoing membership of the Local Government Pension Scheme was not appropriate. The Government’s direction of travel has been clear since then.

The Government have, of course, sought views on this change. Between April and June last year, we consulted with a wide range of interested parties. Although the consultation made clear the Government’s preferred position, it also invited respondents to offer evidence about the impact of the change and to suggest alternative proposals. It is fair to say, as noble Lords have made clear this afternoon, that a majority of respondents did not support the Government’s proposals. Many—particularly some councillors and those representing them—felt strongly that they should be able to continue to be members of the Local Government Pension Scheme. However, it is worth pointing out to noble Lords that only 472 individual councillors felt moved to write as part of the consultation to express their opposition, which is fewer than 3% of the around 18,000 councillors in England.

We have heard today some reasons why those who oppose these changes do so, but it is important to go back to the previous Labour Government’s decision to make it possible for councillors to access the scheme and the reason they outlined for making this change and creating this access. In his Written Ministerial Statement in 2003, Nick Raynsford talked about the change being brought in to address what he described as disincentives. This change was intended to incentivise more people to come forward to stand as councillors but, as I have already said, only 16% of all councillors in England have taken up the offer. If the previous Government decided to make this change to provide an incentive, it clearly has not succeeded. If it was about incentive, then why have more councils and councillors not decided to take up the opportunity?

The LGA and some noble Lords have argued that, if we withdraw access to the scheme, people will not put themselves forward to be councillors. We disagree with that and, indeed, are not aware of any strong evidence that offering access to the scheme has resulted in any change in the number of people putting themselves forward for public service. Similarly, we are not aware of any strong evidence that ending access to the scheme will limit the number of people standing for local election.

I note in particular the point raised by my noble friend Lord Shipley and other noble Lords about the upcoming local elections. I think it was one of my noble friends who suggested that this change was somehow an insult to those who were minded to put themselves forward and that we were doing something that would deter people. The facts do not bear that out. In the forthcoming local council elections in England, we see an extra 1,000 candidates standing compared to when those seats were last fought—an additional 1,000 people have decided it is worth their while to put themselves forward to represent local people even though they will no longer be able to access the Local Government Pension Scheme. People

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become councillors because they want to serve their communities, because they want to change things or because they may have clear, strong political beliefs.

The leader of the Opposition in the other place, Mr Miliband, has tabled an Early Day Motion calling not only for councillors to be reinstated in the scheme, as the Motion of the noble Lord, Lord McKenzie, does today, but for annulling the new pension arrangements in toto—the new arrangements that will benefit low-paid local government workers. My noble friend Lord Bourne made the point that these changes that the Government are introducing are providing some savings. I am happy to acknowledge that the savings are modest, but they are none the less savings. It is important for us to understand whether the Labour Opposition are now committing to reinstating councillors’ access to the Local Government Pension Scheme, were they to be elected. It would be interesting to know, when the noble Lord, Lord McKenzie, comes to respond, whether that is something they will be campaigning on in the remaining few days before the local elections on 22 May.

This Government do not believe that people choose to enter local public life in order to have access to the Local Government Pension Scheme. I know that no one in this debate is suggesting otherwise. However, given the focus and energy that has been spent on this issue, I worry that there is a risk that we give the public the impression that this is the case. We need to be quite careful on this matter.

6 pm

I turn to some of the specific points raised in the debate that I have not already covered. My noble friend Lord True, the noble Lord, Lord Beecham, and the noble Baroness, Lady Bakewell, talked about the treatment of councillors for tax purposes and questioned the distinctions between allowances and expenses. There are a couple of important points for me to make here. For tax purposes, local councillors are officeholders, not employees. Officeholders are subject to the same tax rules as employees, and these include the tax rules for allowances and expenses. That definition is quite a long-standing one; it does not equate to someone being classed as an employee. The noble Baroness, Lady Bakewell, raised in particular the issue of tax on mileage. I am very much aware of that concern among councillors at the moment. Noble Lords might like to know that this is something about which we in DCLG are talking to the Treasury at this time.

My noble friend Lord True talked about the definition of councillors as employees and referred to the Electoral Commission’s guidance on the qualifications necessary to stand for local election. It indicates that service as a councillor in an area can be treated in the same way as having your main place of work in that area. However, if we look again at the same Electoral Commission’s guidance, it also indicates that you would be disqualified from standing for election to a council if you were employed by that local authority.

The noble Baroness, Lady Jones, and the noble Lord, Lord Tope, talked about the London mayor and Assembly members and questioned the arrangements for them. It is worth reminding ourselves that separate

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legislation provides for the London mayor and Assembly members to have access to a pension scheme. By removing their access to the Local Government Pension Scheme, we are not at the same time changing the law that remains in place for them to access a pension scheme that would attract contributions from an employer. However, by making this change, we will bring them into line with MPs, because they will be able to access a pension scheme in just the same way as MPs do: they do have a pension scheme but they are not in the same pension scheme as any employee of Parliament.

As to whether a new scheme for the London mayor and Assembly members would be more expensive—a point raised by my noble friend Lord Tope—I would argue that, equally, it does not have to be more expensive; it could be less expensive. I certainly hope, on behalf of London taxpayers, that the relevant body would take account of that possibility.

My noble friend Lord True wanted to draw a comparison—

Baroness Jones of Moulsecoomb: Could the Minister clear up the point about whether the Mayor will stay in as a police and crime commissioner?

Baroness Stowell of Beeston: As Mayor of London, some of his functions are similar to those of police and crime commissioners. However, he is not regarded as a police and crime commissioner for the purposes of the Local Government Pension Scheme. His status is as mayor and not as a PCC.

Lord Beecham: Why are police and crime commissioners treated differently?

Baroness Stowell of Beeston: The point about police and crime commissioners—this is an area which, in due course, we will want to examine—is that, since they were recently created, we felt that it was not appropriate to make this change at this time. I do not assume that it will be something that will be left unattended for ever.

My noble friend Lord True asked, when we were talking about savings, about the publicity budget for my department. He suggested that somebody in the Box would have the answer. Because I have a great bunch of officials with me, yes, indeed, I do have the answer, which is £2.5 million—which I would guess is a whole lot less than it was under the previous Government.

I can assure the House that the Government did not take this decision lightly. We certainly looked carefully at transitional arrangements for those councillors who are in the pension scheme. I note that the noble Lord, Lord Palmer, dismissed the concessions that we made following consultation that will see that existing members will leave the scheme only at the end of their existing fixed four-year term of office. That means that councillors’ membership of the scheme will be phased out between 2014 and 2017 and that no change to the reasonable expectations that councillors had when they ran for their fixed term will be made. I can also confirm to my noble friend Lord Vinson that he is right that nothing will stop councillors contributing to

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a personal private pension in future, but the key point is that they will not be able to join a scheme to which taxpayers contribute as their employers.

I firmly believe that the best thing we can do to encourage more people to take part in municipal public life is to decentralise power to local communities so that being a councillor is an even more meaningful and rewarding role. We need to attract and retain a wide range of enthusiastic councillors, and I agree with noble Lords who said that this is important. When we are talking about ensuring that we have a wide range of councillors—in fact my noble friend is back with me on the Front Bench—it is worth noting that one of her successors as leader of Trafford Council is 26 years old, comes from a modest background and put himself through university. It is simply not true to suggest that people do not want to put themselves forward to become councillors.

The reason we are starting to attract a wide range of people is that this Government have made many changes to local authorities that mean that councillors are in a greater position to deliver change. For example, we have abolished the Audit Commission and government offices. This means that councillors can rightly focus on meeting the needs of local people, rather than spending their time dancing to the tune of central government. We have introduced new rights for communities to lead and deliver change, including through neighbourhood planning. This gives exciting opportunities for councillors to support and encourage local people to help them deliver their own aspirations.

The noble Lord may laugh, but neighbourhood plans are seeing a fantastic turnout at referendums, when local people know that, as a result of getting engaged, they will see change and will be able to take control of decisions in their local area. We have introduced the general power of competence. This means that councillors now have greater scope to do things to meet local people’s needs. We have helped councillors better represent their constituents and better enrich local democratic debate by scrapping the Standards Board and clarifying the rules on predetermination. These are just a few examples of the steps this Government have taken to strengthen the contribution that councillors can make to their communities.

The LGA briefing note that was distributed to noble Lords prior to this afternoon’s debate said that,

“76% of people trust their local councillor the most to make decisions about how services are provided in their areas”.

That is great news, and the reason for that kind of result is that councillors have the power to lead their communities, to speak for their communities and to deliver for their communities. That is a very good thing.

Lord McKenzie of Luton: My Lords, I start by thanking all noble Lords who contributed to this debate. I apologise to the noble Baroness, Lady Williams, for being remiss in not recognising her first appearance on the Front Bench on CLG matters. Despite the fact that this is an emotive subject, the debate has been fulsome, knowledgeable and very measured.

We recognise that the Minister today paid fulsome tribute to the role of councillors, but part of the problem with this whole issue is that some of her

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colleagues did not display the same attitude, and certainly not in presenting and developing the pensions issue that we are discussing today. Also, the concept that somehow people are rushing to stand for election because of the abolition of the Audit Commission is a little far-fetched. The issue about the numbers of people standing is not perhaps so much whether there are new people wanting to come forward but how many people are not standing who stood before because of the financial pressures and challenges of being in local government today. We have not heard anything new from the Minister—that is not to be expected, perhaps—in justification of the policy the Government are pursuing here.

On this issue of not being reliant on the municipal payroll, if there is not some basis for elected members to earn a living, will we not end up in a situation where only the rich, the retired and—less so these days—those with benevolent employers who are happy to give their employees lots of time off can serve in local government? There must be some form of remuneration. Is not the issue about pensions the general point that if we encourage people in all other spheres to save for a private pension because the state will not be able to produce enough for them to have a full retirement, why—in the words in particular of the noble Lord, Lord Shipley, who is not in his place—are councillors being discriminated against in that respect?

I will pick up on some comments from other noble Lords. I think all but two who spoke were in support of the proposition before us today. The noble Baroness, Lady Jones, raised a very important point about the mayor and PCCs, although that has been clarified. The noble Lord, Lord Bourne, reminded us that we should be careful about how we use the term “volunteer”, and I take that point. The problem is that the Government, in characterising what local councillors do as “volunteering” in the same category as some of the work done in the voluntary sector, undervalue, underestimate and do not recognise the role and responsibilities that councillors undertake in the modern era. That is the key point.

The noble Lord asked whether we would commit to bringing this back, and I think the Minister said that we were in favour of scrapping the 2014 revised scheme. Was that what she said?

Baroness Stowell of Beeston: The point I made was that that EDM that the Leader of the Opposition in the other place tabled goes beyond the narrow scope of the regret Motion that the noble Lord tabled today and prays against the regs completely.

Lord McKenzie of Luton: Let me make it absolutely clear that it is my party’s position that we support the revised Local Government Pension Scheme. So far as these arrangements are concerned and whether we would reinstate this, I cannot give a blanket commitment that we would. No incoming Government would do that without looking across the piece at all the things that must be addressed. More particularly, the Local Government Pension Scheme is currently under consultation to restructure on a more effective, collaborative basis. That is part of the Government’s

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consultation. We do not yet know how and where that will lead. Also, the consequence of the Government’s position is that councillors will be driven into the private pensions market. How readily that can be unpicked would be a real issue as well, particularly because small pension pots stranded in private sector schemes cannot be transferred back into the local government scheme. A raft of issues would, quite properly, need to be considered.

My noble friend Lord Beecham, with his usual incisive approach, reminded us that Conservative legislation laid the groundwork for some of these proposals and that it depends upon independent panels enabling members to become part of the Local Government Pension Scheme at the moment.

6.15 pm

We should pay tribute to the noble Lord, Lord True, who was in the very difficult position of speaking up for his hardworking colleagues against government policy. I know he does not find that easy. He made the point that this should be for local determination and that the Local Government Pension Scheme has been reformed. He referred to the Government’s inconsistency of policy in this respect. He also made the point that this is a group being discriminated against. Why are councillors not enabled to be part of what is effectively an occupational or employer-supported pension scheme?

We heard from the noble Baroness, Lady Bakewell, a real, practical example of somebody who had to reduce their working week to cope with their council responsibilities, giving up earning capacity. Particularly in the rural context where distances and the time taken are a feature of engagement as a local councillor and the jobs market, the noble Lord, Lord Shipley, said—I agree—that the Government have made a very bad decision. It discriminates against elected members. He made the very interesting point about remuneration committees. If, to an extent subject to public pressure, there is some grossing up so that individuals can go out and engage in the private pensions market, that would have to be done across the board—not only for those who are currently members of the scheme or wish to be.

I did not altogether follow the position of the noble Baroness, Lady Hanham, in not being able to understand why pensions were involved. Pensions are involved because if a person’s sole or main source of income—if we call it that—was from their local authority allowances, how would they make the private provisions that top up what the state will do if they cannot access a pension scheme like other people do?

The noble Lord, Lord Palmer, drew the very real comparison and contrast with ministerial salaries. What is good for Ministers does not seem to be very good for councillors.

We understand that the noble Lord, Lord Tope, is now at the end of his days as a serving councillor. I think that means we will have more of his time with us here so we will benefit from that. He emphasised the extent of the anger that these provisions have incurred, particularly in the timing, with the pain—as he put it—of councillors having to make those dreadful cuts

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up and down the country. They are on the front line. It is those people who take those responsibilities that we want serving on councils and we pull away from them an important part of their ability to provide for themselves and their families now and in future.

Given the tenor of the debate I was tempted to test the opinion of the House, but the measure is not to defeat the proposition, just to express an opinion. The very full debate has spoken for itself. Therefore I will decline on this occasion to test the opinion of the House—but this issue will not go away. We will have to see what is done by local government and whether alternative arrangements are developed outside the current Local Government Pension Scheme to enable serving councillors not only to serve their communities, often on a full-time basis, but to do it with some reassurance that their old age will not lead to penury. Having said that, I beg leave to withdraw the Motion.

Motion withdrawn.

Church of England (Miscellaneous Provisions) Measure

Motion to Present for Royal Assent

6.20 pm

Lord Newby (LD): My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the Church of England (Miscellaneous Provisions) Measure, have consented to place their prerogative and interest, so far as they are affected by the Measure, at the disposal of Parliament for the purposes of the Measure.


Moved by The Lord Bishop of Oxford

That this House do direct that, in accordance with the Church of England Assembly (Powers) Act 1919, the Church of England (Miscellaneous Provisions) Measure be presented to Her Majesty for the Royal Assent.

The Lord Bishop of Oxford: My Lords, every few years, the General Synod produces a miscellaneous provisions Measure in order to excite the general population. Its purpose is to sweep up all those small and uncontroversial legislative changes that would not in themselves justify stand-alone legislation, but which appear to be either necessary for the purposes of clarifying or simplifying the law or administratively or practically convenient. This is the 11th such Measure. It covers a wide range of topics, and I do not propose to cover them all, but only to highlight a few of the most important.

There are several provisions in the Measure relating to clergy. Clause 8 inserts new provisions in the Overseas and Other Clergy (Ministry and Ordination) Measure 1967, enabling the archbishop of the relevant province to revoke a permission granted to an overseas priest or deacon. The Measure also provides for the grant of

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general permissions in circumstances where large numbers of overseas clergy are visiting England at the same time—for example, the Lambeth Conference every 10 years. Clause 11 inserts a new appeal procedure into the Incumbents (Vacation of Benefices) Measure 1977 to ensure that the proceedings under the Measure are fair to incumbents. The amendment in Clause 12 to the Patronage (Benefices) Measure 1986 simplifies the procedure for appointing a priest in charge as the incumbent of a benefice where the patron does not object to the proposal to use the simplified procedure.

There are some practical changes in relation to the faculty jurisdiction. Clause 6 makes new provision for the qualifications necessary to become the chancellor of a diocese or the Dean of the Arches and Auditor, because the old provisions have simply become obsolete. Clause 7 makes new provision enabling the chancellor of a diocese to grant a faculty authorising works to a monument which has become dangerous, even if the owner of the monument withholds consent. That resolves the present unsatisfactory provision, which requires the court to choose between allowing the monument to be removed from a church by an owner who will not consent to works but indicates that he or she is willing to remove the monument and, on the other hand, allowing the monument to remain in the church in a dangerous state.

The Measure also includes a number of provisions relating to the Church Commissioners. Most of those are for administrative convenience in the management of their own affairs or small extensions to their existing powers, such as the amendment of Section 6 of the Endowments and Glebe Measure 1976, to enable them to pay the expenses of office of an archdeacon, in addition to their existing power to pay an archdeacon’s stipend.

However, one provision that perhaps requires additional comment is Clause 4, which inserts provisions into the Church Commissioners Measure 1947 and the Clergy Pensions Measure 1961 confirming that both the Church Commissioners and the Church of England Pensions Board have power to enter into derivative contracts. The need for this provision has arisen because in recent years both bodies have had increasing difficulty in persuading potential counterparties that they have the necessary powers to buy derivatives. It is important to say that neither body proposes to speculate in derivatives; they wish to use them purely as a way of managing risks arising in their investments—for example, by hedging against changes in interest rates. This does not represent a shift in investment strategy but an enabling of it.

Clause 16 makes some amendments to the powers of the Dioceses Commission to deal with some small lacunae that were discovered in the Dioceses, Pastoral and Mission Measure 2007 when the scheme for the new diocese of West Yorkshire and the Dales was prepared.

Finally, at Clause 14, the Measure makes provision amending the Cathedrals Measure 1999 to confer power on cathedrals to resolve to adopt a total return basis for the investment of their endowment funds. This provision brings cathedrals into line with charities regulated by the Charity Commission, which have power to make such resolutions in accordance with

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regulations made by the Charity Commission under the Trusts (Capital and Income) Act 2013. The power conferred on cathedrals is very similar to that conferred on other charities, save that cathedrals will not have the power that other charities have to borrow a portion of their permanent endowment and repay it into the investment fund at a later date, as there were concerns that that might be controversial.

As I intimated, the Measure may not be the highlight of your Lordships’ week, but I beg to move.

Lord Elton (Con): My Lords, I wonder whether I may briefly intervene to echo a word of caution that I uttered when this Measure was before the Ecclesiastical Committee. It concerns Clause 4, to which the right reverend Prelate alluded. I accept absolutely that the church has successfully and necessarily dealt in derivatives in the past without mishap. However, I noticed that provision is also made for the commissioners, in subsection (3) of new Section 6A of the Church Commissioners Measure 1947—and by similar means, in Clause 4(2) of this Measure, for the clergy pensions board—to empower the commissioners and the clergy pensions board to change the provisions that are now before your Lordships to widen the terms, the definition of derivatives that we have before us to approve, to embrace an undefined group of instruments which do not yet exist.

Your Lordships will remember that such an extension was made not so very long ago by very senior, highly respected and successful bankers in the international community about derivatives composing third-rate American unsecured mortgages. The result of that was catastrophic. It very nearly destroyed the whole world’s banking system and did a great deal of harm to a great many people. Those were wise, experienced, sensible people—at least, a large number of them must have been because there were so many. It is no reflection on the financial abilities of the board, the commission and their advisers to say that these things can be very dangerous. It is rather like going into a shop where there is a basket full of toys, but one or two of them are hand grenades. The great danger is that people do not spot the difference.

Although one is reassured by the undertaking given in the discussion of the Measure before the Ecclesiastical Committee that the church’s representatives will never deal in instruments that they do not understand, one must recognise that the bankers of the world could have said exactly the same thing a week before they actually caused the catastrophe. I am saying this because, if a measure is proposed within the Church of England to avail itself of that extension, I hope that this warning shall be read by those doing so, so that they will be reminded of what these things can do and treat them with very great care.

6.30 pm

Lord Williams of Elvel (Lab): My Lords, I intervene only to refer to Section 19 of the Measure, which refers to the Lady Margaret Professorship at Oxford. I have to declare some sort of interest, in that my father was Lady Margaret Professor of Divinity at Christ Church. It seems to me that we cannot let that go

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entirely without some sort of obituary. The professorship was set up by Lady Margaret Beaufort, who, your Lordships will no doubt recall, was the mother of Henry VII. It has been a distinguished post in the history of Oxford, of Christ Church and of divinity and theology. After my father, and before he became archbishop, the noble and right reverend Lord, Lord Williams of Oystermouth, who was the previous archbishop to my stepson, was Lady Margaret Professor.

It is, in a way, a sad obituary for something that was set up and operated so well in so many theological contexts. It allowed professors to deliberate and preach in the security of the residence of Christ Church. It is a pity that it should go. However, there it is. As they say, the caravan moves on. All I would ask of the right reverend Prelate is that he explains what will happen to that rather attractive priory house where my father lived and I was brought up. I would be interested in what Christ Church believes it should do with it. Other than that, I simply say, “Lady Margaret Beaufort, farewell”.

The Lord Bishop of Oxford: My Lords, I am grateful for those two contributions. To my noble friend Lord Elton I say, yes, a concern has been expressed to me about what the impact of this would be. It is as well to be clear what we do at the moment—what the Church Commissioners, for instance, are using derivatives for. They use them for three things: the hedging of foreign currency, the hedging of interest rate risks and as a means of taking shares in particular companies—preparation for buying equities themselves. So they make very limited use of derivatives. They are certainly not in the business of speculation.

It is worth understanding that trying to draw up an adequate measure that would cover the variety of uses that might be needed in future meant that it was not possible to be too specific. If we had been very specific in drawing up legislation, it would have required a much more substantial measure to identify each of the financial instruments that might have had to be named. That would have taken us another two or three years: to go through the General Synod, through Parliament, et cetera. Therefore, we tried to give ourselves sufficient width, recognising that the Church Commissioners and the pensions board are not into speculation, and that they have pledged to enter only schemes that they understand. I think that was a significant problem in 2008. We therefore have reasonable safeguards here, recognising always that the Charity Commissioners require charities such as the Church Commissioners to act only in the best interests of the charity itself and not like individuals who might be entering speculative regions.

I say to the noble Lord, Lord Williams, that I am very sorry about the Lady Margaret Professorship departing. He gave it a good obituary. It is a sign that good theology is now much more broadly spread across the population. It is not just an ordained preserve: lay and/or ordained theologians are excellent and serving the church and the world. So I agree that the caravan has moved on and will say only that this is where we have moved to and that lay theologians as well as ordained ones are entitled to live in the lovely house.

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With those very few comments, I am happy simply to ask the House to approve the Motion.

Motion agreed.

Coalition Government: Constitution Committee Report

Motion to Take Note

6.35 pm

Moved by Baroness Jay of Paddington

That this House takes note of the Report of the Constitution Committee on Constitutional implications of coalition government (5th Report, HL Paper 130).

Baroness Jay of Paddington (Lab): My Lords, I am particularly pleased to open the debate on this important report in this, the last week of my chairmanship of the Select Committee on the Constitution. The debate gives me the opportunity not only to thank all the witnesses who gave us valuable evidence in our wide-ranging inquiry, but also to express my overall gratitude to everyone associated with the committee during my four years as chairman. It has been a great privilege to work with the senior members of the House who have served on the committee. They have been very assiduous in their activities and made consistently distinguished contributions to our work. I am delighted that several of them are taking part in this debate. As members of the committee we have been extremely well supported, too, by our officials and by our legal and specialist advisers, all of whom have given us first-class assistance and advice. I would like to congratulate them on their work, as well as thank them.

This report is the result of one of the most significant inquiries the Constitution Committee has conducted in this Parliament, and as the Parliament enters its final year its conclusions and recommendations are particularly timely. Today, as noble Lords are well aware, we are constantly told by the party leaders that no one is contemplating the possibility of another hung Parliament in 2015: all are fighting for single-party victory. This may well be the ambition, but is it the reality? The committee naturally understands that, following another unclear election result, much will be determined by the politics of the day. However, we think there should be greater clarity about a number of constitutional questions before the end of this Parliament, and certainly before polling day in 2015. The opportunities for so-called “muddling through” in a traditional British way should be much reduced. Of course, the date of the next election is so certain because the Fixed-term Parliaments Act is now in operation. That Act has been the backdrop to the present coalition Government and to our inquiry, and I will return to its effect on the issues we examined later in my speech.

We looked at other changes in constitutional practice, which, for better or worse, may become permanent changes even when a future majority Government are in power. The committee’s intention is for our report to offer analysis and conclusions which should provide

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valuable guidance on what could become a more regular feature of British politics. As your Lordships appreciate, with an unwritten constitution many of the rules and conventions of Parliament and government are based on precedent. It is worth reminding the House, as the noble Lord, Lord Norton of Louth, reminded the committee, that this is the first peacetime coalition Administration since 1931, and the first ever coalition that has been the product of arithmetic following a general election. The last hung Parliament was in 1974 and that decade—the 1970s—experienced both minority Governments and arrangements on supply and confidence between parties in the House of Commons—arrangements which some have suggested sit more comfortably with our long-held conventions of Cabinet government.

The noble Lord, Lord Donoughue, with his personal experience of 1970s government, was one of our witnesses who supported this position and I am pleased that he is going to make a contribution to the debate in the gap. It remains to be seen if contemporary experience encourages today’s politicians to look at other solutions for government after an inconclusive election.

Our report covers four main areas. First, we look at the process of government formation after a hung election. Secondly, we examine proposals which aim to enhance the legitimacy of future coalition agreements. Thirdly, we consider how government and Parliament have and should operate under a coalition. Finally we address certain issues that we think will arise in the next few months, towards the end of the Parliament.

I begin with government formation. The House is aware that a succession of one-party Governments elected with large majorities has produced a modern expectation that Administrations change very quickly. The brutal, if effective, so-called “removal van in Downing Street” approach has meant that Prime Ministers are usually in their new place in less than 24 hours after the polls close. Evidently that was not the case in 2010, when negotiations took five days to conclude. We were told in evidence that all the parties felt under great pressure, particularly from the financial markets and the media, to conclude negotiations as quickly as possible. There was pressure on the Prime Minister to resign swiftly, with press headlines such as “The squatter in No. 10”, yet a period of five days for negotiation was by international standards very short. We concluded that although a Government should be formed as promptly as possible, five days should certainly not be seen as a template period for government formation after future hung elections. We were concerned by the lack of public and media understanding about the time that it takes to form a Government in these circumstances.

In particular, our witnesses told us that it was not only perfectly constitutionally proper for an incumbent Prime Minister to remain in office until the identity of a new Government was clear but that there is in some sense an expectation that he will do so. The Constitution Committee felt that—if only, frankly, to protect themselves as well as improve public understanding—the party leaders and managers should try to get these points across, particularly to the media, before the next election in May 2015.

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One notable senior figure who thought ahead about the possibility of an inconclusive election was the then Cabinet Secretary, now the noble Lord, Lord O’Donnell, who I am very pleased to see contributing to today’s debate. Several of our witnesses paid tribute to his foresight in starting to plan for the outcome of the election. Importantly, arrangements were put in place for Civil Service support to be made available to any parties that were involved in post-election negotiations. In the event, the Conservative and Liberal negotiators took up logistical support only; they did not take up the offer of advice or briefings. On the other hand, we heard from the noble Lord, Lord McConnell, whose contribution I look forward to, about the experience in Scotland where the parties had fully taken up the offer of Civil Service support and found it very helpful indeed. Our report recommends that official advice should be automatically available after future hung Parliaments at Westminster. Clearly, it would be for the parties to decide what level of support they would take up but it should certainly not be up to the incumbent Prime Minister to grant this opportunity. We recommend that the current Government should commit in advance to make Civil Service support available, if necessary. I hope that the Minister will be able to give that commitment today.

Today’s coalition Government have often been questioned about their democratic legitimacy. No one voted for a coalition and it is argued that the coalition agreement of 2010 does not have the same status as the manifesto of a party that won a majority at the election. Some of our witnesses, albeit those from an academic rather than a political standpoint, suggested ways of closing a possible constitutional gap in legitimacy. One proposal was that after an election, the House of Commons should hold an investiture vote for a new Prime Minister; another that the Commons should vote formally to approve a coalition agreement. The committee did not accept these ideas. We thought that a prime ministerial investiture vote would risk making our system of government even more presidential and concluded that a traditional vote on the first Queen’s Speech is the appropriate test of whether the House of Commons has confidence in the Government and therefore approves a coalition programme.

I turn to those parts of the report which deal with the way in which the coalition Government have impacted on our constitutional understandings about how government and Parliament work in practice. Undoubtedly, the most dramatic departure from constitutional norms under this Government has been, as we heard, the frequent breaches of the convention of collective ministerial responsibility—a convention which is at the heart of Cabinet government. Noble Lords will recall that breaches have occurred on significant matters, such as the saga of the constituency boundary review where the Deputy Prime Minister unilaterally told Liberal Democrat parliamentarians to vote against a measure which, until then, had been seen as agreed government policy. The noble Lord, Lord Strathclyde, whose involvement in this debate I am also grateful for, said in his evidence to us that that was “outrageous”.

However, on the Conservative side we have also seen the remarkable event of Ministers being allowed to abstain on a vote on the Queen’s Speech and

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therefore in effect not being required to defend the Government’s agreed legislative programme. Other witnesses spoke of the debate on the report by Lord Justice Leveson on the press, when the Prime Minister and Deputy Prime Minister spoke successively from the same House of Commons Dispatch Box, but on different sides of the issue. Noble Lords will recall a similar situation in this House. There have been many more examples, yet in the current Parliament no Minister has resigned or been asked to resign because they have not been prepared to accept agreed government policy.

The committee considered whether this meant that collective responsibility should be explicitly set aside under a coalition Government. We also debated whether the principle should be generally downgraded in 21st-century politics, even when a majority Government are in power. We concluded that this would be a fundamental constitutional mistake. After all, the convention of collective responsibility is primarily important because it enables Parliament fully to hold the Government responsible for all their actions and policies. It means that Ministers cannot wriggle out of responsibility by saying that a certain decision was taken by another Minister and that they had nothing to do with it. Moreover, the committee agreed that the process of collective decision-making, which is an essential part of the convention, is more likely to lead to good government than making decisions in isolation.

I remind the House that when the coalition was formed, the agreement identified five issues on which the two parties would be permitted to express different views. Processes were set out whereby this could happen but, since then, divergence between the parties on other issues has clearly happened without any proper process being followed. I would say that the present row on education policy is probably a vivid example. The committee, of course, recognised that it is inevitable that two different parties will disagree on certain issues but we think that the convention is sufficiently important for collective responsibility to be set aside only as a last resort. We recommend that when one party wants to ignore the convention it should take the matter to Cabinet, so that it is the Cabinet as a whole that agrees to set aside the convention. This should happen only on specific issues, and preferably for a limited period. We think that a process along these lines should be set out in any future coalition agreement. Those who argue that the lack of collective responsibility we have seen in the present Parliament simply illustrates the unsuitability of coalition government in our system undoubtedly have a point. Certainly, given what has happened in the last four years there is a need to be more explicit and transparent about arrangements in future.

Turning to the effect of the coalition on your Lordships’ House, we found one perhaps unexpected side-effect: the relative lack of senior Ministers in this House. The noble Lord, Lord Strathclyde, told us he had hoped that the number of senior Ministers in the Lords would increase over the Parliament, but in fact the opposite has happened. He regretted that, and so do we. Perhaps the noble Lord will expand on this point in his speech this evening.

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The committee examined how the Salisbury/Addison convention should apply during coalitions, and we conclude that a coalition agreement does not have the same mandate from the electorate as the manifesto of a majority party. Therefore, the Salisbury/Addison convention does not apply to measures in a coalition agreement. Again, however, the committee recognised the political reality that a practice has evolved whereby the Lords does not normally block government Bills, whether they are in a manifesto or not. We saw no reason to dilute this practice when there is a coalition but still thought it important to state that a coalition agreement does not constitutionally equal a manifesto commitment.

The last chapter of our report looks at the final months leading up to the general election. It is worth reminding ourselves that, in the next year, we will be dealing with two unprecedented factors. First, we know exactly when polling day will be and, secondly, we have a peacetime coalition Government who proclaim that they will stay together until 5 May next year. The committee’s immediate conclusion is that the certainty about dates should cancel the need for the often unsatisfactory period of frantic legislation at the end of a Parliament. The legislation in the forthcoming Queen’s Speech in June should be planned so that the so-called wash-up is washed out. I am glad that the noble Lord, Lord Strathclyde, as a previous Leader of the House, agreed with us. As I said, the prospect of two parties campaigning against each other while running the Government together is unprecedented and raises a number of political questions, which again the noble Lord, Lord McConnell, may shed light on from his experience in Scotland.

Once Parliament is dissolved and the formal campaign begins, the constitutional guidance on the purdah period is clear in the Cabinet manual. Our report emphasises that this guidance must be adhered to. When it comes to the different parties in government receiving advice from civil servants, we propose that a party with no Ministers in a particular department should be entitled to have contact with officials in that department in the same way as the Official Opposition would. This would prevent any party being disadvantaged in the run-up to the election.

As the committee’s report has demonstrated—although I have not covered every point—the constitutional effects of having a coalition Government have been profound. It should not of course be assumed that future hung Parliaments would automatically lead to a coalition Government; but, frankly, it would be naive for the political parties and others not to be taking that possibility into account.

I hope your Lordships appreciate that this inquiry by the Select Committee was extensive, and included evidence from a very wide range of authoritative witnesses. The report includes substantial analysis and practical recommendations on the basis both of our deliberations and the evidence we received. We published in mid-February and the report was designed to coincide with the conclusion of this parliamentary Session and the start of pre-election preparations. I am pleased that we have been able to debate it today, before Prorogation. However, I say to the Minister that I am extremely disappointed that the Government have failed

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to give any response to the report so far. It is a report of current interest and importance, yet the Government again have ignored the understood guidance, which asks for a response to Select Committee reports within two months of publication. Frankly, I regard that as not simply discourteous but, in this case, irresponsible.

During this Parliament the Constitution Committee has been disappointed by the Government in this way several times. I hope that the noble Lord, Lord Wallace, can offer detailed comment on our recommendations when he replies tonight, but I am afraid that whatever is said will not be a substitute for a proper, written, official response.

I do not want to conclude on that disagreeable note; so I end by renewing my thanks to all who contributed to the report and to those who will speak in the debate today. It has been a great privilege for me to serve as chairman of your Lordships’ Constitution Committee. It has also been enormously enjoyable, and I look forward to the debate. I beg to move.

6.51 pm

Lord Strathclyde (Con): My Lords, I am delighted to be speaking immediately after the noble Baroness, Lady Jay. Perhaps I may be the first publicly to pay tribute to her time as chairman of such a distinguished committee as the House of Lords Constitution Committee. She has served with distinction, but she has also served at a most fascinating and interesting time. The noble Baroness reminded us that she has served for four years, which is a long time. In those four years we have seen constitutional innovation, to which the report alludes several times over.

As the noble Baroness explained, I gave evidence to the committee and read its report. One of the reasons I wanted to speak in this debate was to say how good I thought its conclusions were. It is extremely clear and well-written, and therefore effective. I am sorry to hear that the Government were unable to give a written response but I have great faith that my noble friend Lord Wallace of Saltaire will be able to say that he, too, on behalf of the Government, thinks this a very positive report. There is much to take away, not just by politicians but by senior members of the Civil Service, particularly the Cabinet Office, if this thing—this coalition—ever happens again.

It was useful for the noble Baroness to remind us, as is written in the first paragraph of the report, what my noble friend Lord Norton of Louth said about this being the first coalition to come about because of the arithmetic calculation after a general election. That demonstrates just how rare a coalition is in the United Kingdom. We have no reason to believe that it will necessarily happen again in the near future. It probably will not happen again, but I dare say that we ought, like the boy scouts, to be ever ready and ever prepared for it to happen again.

In May 2010 I was one of those who were initially sceptical about the desirability of having a coalition. I felt that my right honourable friend David Cameron probably could have carried on a minority Government, but that was not the prevailing view. It was said that people generally liked the idea of politicians sorting out their differences in private before coming to Parliament

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with an agreed set of proposals. Whether that is true in practice remains to be seen, but it is true that people like that idea. What else is true is that this coalition has been remarkably successful, particularly in barring the noises off, and has had huge success in reform of some of the most important parts of the public sector—education, welfare and health. What Government, within 12 months of a general election, would not be delighted to hear that the United Kingdom now has the fastest-growing economy in the G7; that there are more people in work today in Britain than ever before; that unemployment is falling; that the twin scourges of inflation and interest rates, which most of us have lived with for most of our lives, are at rock bottom; and that month by month, year by year, the deficit is being cut and we can see, over the horizon, a time when it will be eradicated? That is a success for the coalition.

I have no idea whether there will be another coalition Government. If there is, the only point with which I took minor issue was on the formation of a Government. It is important for the nation to have a Prime Minister and to know who that Prime Minister is as quickly as possible. We should not create a system that allows for a Prime Minister to linger on in 10 Downing Street for too long. If there is no pressure to come to an agreement on who the new Prime Minister should be, it could drag on for a very long time indeed. I cannot imagine that it was a pleasant experience for Mr Brown as Prime Minister to be twiddling his thumbs among the packing cases, waiting for the Liberal Democrats and the Conservative Party to reach some sort of agreement. There is all the difference between the parties agreeing that there should be a coalition and that therefore there should be a Prime Minister, which should be announced as soon as possible, and for the Palace to do the all-important ceremony with which it needs to be involved, and the final troth being made on a coalition agreement and, most importantly, on what the terms of the first Queen’s Speech should be. I agree with the idea that there should be a longer time-lag between the general election and the Queen’s Speech. A period of 12 days was mentioned, which is perfectly sensible.

I want to make four observations on the report with regard to the House of Lords. The first relates to paragraph 145 and the Salisbury convention. The report admirably says and the noble Baroness repeated it:

“We recognise that a practice has evolved that the House of Lords does not normally block government bills, whether they are in a manifesto or not. There is no reason why this practice should not apply when there is a coalition government”.

I quite agree. In fact, that is my understanding of what the Salisbury convention has become and how it has developed over many years. There is a faint absurdity in this unelected Chamber denying ourselves the right to debate a Bill which has already been passed by the elected Chamber and we should not do it. One can imagine the truly appalling circumstances in which the House of Lords needs to reserve that right, but as a matter of course that should be part of the Salisbury convention. That is why I very much regret that in this Parliament it was the Official Opposition who supported the wrecking amendments on the Health and Social Care Bill. That was an extremely foolish and dangerous

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thing to do and should not have been done. When the Labour Party eventually gets back into government it should beware that an irresponsible group in the House of Lords does not hang that around its neck.

The second issue that I want to draw attention to is that of collective responsibility and the boundaries issue, which is eminently well described in paragraph 71. The paragraph refers to the evidence that I gave. I said that it was a “dirty trick”. The noble and learned Lord, Lord Falconer of Thoroton, said that it was,

“a flagrant breach of an agreement”,

although he happily conceded that he was delighted that the Liberal Democrats had done so.

Either way—and I stand by what I said—what I dislike intensely in paragraph 71 is how David Laws MP prays in aid the collapse of the House of Lords Bill in the House of Commons. I just want to say that this is a desperate rewriting of history. The House of Lord Bill was passed in the Commons on a huge majority at Second Reading. Nearly 80% of MPs voted in favour of it. What happened thereafter was a failure of the Government and of the Minister who was responsible for it, the Deputy Prime Minister, to reach an agreement, particularly with the Opposition, on the programme motion. That was not the fault of a few dozen Conservative Members of Parliament. As we all know in this House, this issue was always going to be controversial and could never have been passed by one party acting on its own. It could have been passed only by agreement. If the Deputy Prime Minister had spent more time early on in the Parliament working with the shadow Cabinet and the Labour Party, he might have got that agreement.

I cannot help thinking that the issue of House of Lords reform became a convenient argument, and that is all, and that even if House of Lords reform had gone through, the Liberal Democrats would have found a different excuse for reneging on the deal that they had struck in the coalition agreement.

Baroness Grender (LD): May I clarify something with the noble Lord? Is it not the case that the Prime Minister took the decision to withdraw from pushing ahead with the vote on the programme motion?

Lord Strathclyde: I am sure that is the case, but only on the basis that he knew it was going to be lost. He knew that the Minister responsible for the Bill could not guarantee that they had support from Her Majesty’s loyal Opposition. That is why it collapsed.

Lord Forsyth of Drumlean (Con): Is not the point here that up until now it has been accepted that it is an almost sacred duty on the part of Governments to implement Boundary Commission reports? The moment that we have political parties fiddling around with them for their party advantage, all is lost. What happened was therefore quite reprehensible and disgraceful.

Lord Strathclyde: Even more than that, my Lords, as my noble friend Lord Forsyth will remember well, for years and years the Liberal Democrats would

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lecture us and the people of this country on the monstrous unfairness of the electoral system, but they themselves then ensured that we now have the most unfair system because, as my noble friend suggested, they blocked the entirely correct work of the Boundary Commission.

The third point that I want to make is about Lords Ministers. Again, I very much agree with the conclusions of the report. The point is that over the past 30 or 40 years we have had many eminent and senior Ministers coming from the House of Lords, most recently under the Labour Government. This is good not just for the House of Lords but for the Government; it is good for the process of government to have senior Peers with a lot of experience—outside politics sometimes—who play a part. I understand the pressures within a coalition to provide ministerial seats in the House of Commons, but I have to say that in May 2010 when I went to Downing Street and was invited by the Prime Minister to take on the burden of Leader of the House of Lords, which of course I was delighted to do, I asked how many Liberal Democrats I should expect and I was very surprised to be told: absolutely none, because there had been an agreement with the Deputy Prime Minister that all the Liberal Democrat Ministers would be made in the House of Commons. There was a terrible silence as I realised that it was impossible to come back and sit on the Front Bench without my noble friend Lord McNally and other Liberal Democrats who have served so ably. There was a quick discussion and I am delighted to say that on the Front Bench in the coalition we have had a very effective team of Liberal Democrats and Conservatives working together. My regret is that very few of the Liberal Democrats are actually paid for the work that they do, particularly not the Whips. I very much hope that, whether we have another coalition or return to single-party government, more senior Peers will be represented in government as Ministers. That will ultimately be to the benefit of the nation.

The last point that I want to make is about the wash-up. That is an ugly little phrase to explain something that is extremely necessary and, on the whole, works effectively. It was much abused, I am sorry to say, in 2010 by the outgoing Labour Government—with some collusion, I have to accept, from the then Opposition. The purpose of the wash-up is to tidy up Bills as quickly as possible with the agreement of the whole House. It should not be for shovelling through vast swathes of legislation unscrutinised, undebated and not even discussed or indeed improved, and I hope that we do not see those days again. They could be circumstances if there is some emergency legislation that needs to be passed quickly but, again, that should always be done with the agreement of the usual channels in both Houses.

I have spoken for far longer than I intended to. Perhaps I may just finish by saying that, notwithstanding what I think has generally been the success in government of this coalition, I hope that we will not need another one but, if we do, that it should work effectively and smoothly in the interests of the good governance of this country. I think that the reading of this report by the Government and the Civil Service will be an effective way of ensuring that that happens.

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7.06 pm

Lord McConnell of Glenscorrodale (Lab): My Lords, I, too, thank the noble Baroness, Lady Jay, for the presentation to your Lordships’ House today of this excellent report from the Constitution Committee. On behalf of perhaps all the devolved Administrations over recent years, I thank the committee for the opportunity to give evidence and to speak in this debate.

In addition to the experience over the past four years of coalition government in the United Kingdom, of course, the UK has also seen coalition government in different forms in Scotland, Wales and Northern Ireland over recent years. I was very pleased that the committee was willing to take that experience and use it, as I believe the noble Lord, Lord O’Donnell, did in preparing for and then executing the discussions after the 2010 general election.

The committee’s report is thoughtful and balanced. I, too, hope that the Government and the Opposition will respond to the recommendations that have been made. I do not think that any of them should leave it until closer to the general election to do so. I hope that as well as getting a response today from the noble Lord, Lord Wallace, at some point we will also receive a proper written response from the Government and that the official Opposition will consider this report and make public their views on it, too; all the political parties here have to address the issues that have been raised.

When I gave evidence to the committee I was reminded of an article I had written that was published on 15 May 2010, entitled “Ten tips for making coalition work”, based on my experience in Scotland shortly after the coalition agreement had been reached by Prime Minister Cameron and Deputy Prime Minister Clegg. That experience came from being part of the first Cabinet in Scotland in 1999 and the coalition agreement that I like to describe as the “Add the Liberal Democrats on” coalition—because essentially Donald Dewar and colleagues had been in government and moved into the Scottish Parliament but did not have a majority there so they worked hard to secure the agreement of the Liberal Democrats, led by the noble and learned Lord, Lord Wallace of Tankerness, to form a coalition for the first four years, which managed to survive three different First Ministers and a whole series of crises. It saw out its four years and implemented a raft of legislation that perhaps would have been seen as very ambitious back in May 1999 but made a real difference to Scotland.

Then came a very different coalition. Because of the way in which it came together it was essentially stronger, based on two manifestos that had really been written for the Scottish Parliament and that were about what was happening in Scotland at the time. The politicians knew each other and the Parliament well, and what they could achieve. In 2003 that coalition made a huge difference over four years in building a more confident and successful, and a healthier, Scotland.

The 10 tips that I outlined in that article focused primarily on three issues. One was trust: not just personal trust between—in my case—the First Minister and Deputy First Minister, but also between the parties to ensure that there was a working relationship on the

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Back Benches as well as on the Front Benches. Secondly, there was the important issue of dealing with compromises and disputes: the flexibility required in government to respond to events and to seize opportunities as they arise if they have not been foreseen. Thirdly, there was the absolutely vital issue of direction and a sense of purpose. Within that there was the necessity for a one-for-all, all-for-one approach to collective responsibility and the work of Ministers.

Had those tips not been very real in our coalition when I was First Minister in Scotland, it would not have been possible to lead the UK on the ban on smoking in public places or deal with a controversial issue such as in-migration to help reverse Scotland’s population decline and improve our economic performance so that we were ahead of the UK in GDP growth rather than behind it. We also made huge changes to our justice system and a legislative programme between 2003 and 2007—changes that were long overdue. Having a strong coalition can be effective, but it needs to have those key elements of trust, flexibility and collective responsibility to make it work well. That is why I agree strongly with the report from the Constitution Committee. I readily endorse all but one of the recommendations, and I will draw attention to three issues in particular.

The first is the role of the Civil Service in advance of and after an election. This will be a very real issue next year as the preparations for the general election get closer, and then in the post-election scenario that could well lead to similar discussions taking place again. The recommendation in paragraph 40 has my full support based on the experience in Scotland, and in London in 2010.

The second issue is one to which my noble friend Lady Jay did not refer: access to papers in future Administrations. A recommendation in paragraph 131 sets out the procedure that could be used following these five years of coalition government in order to ensure that both parties are treated fairly in the issue of access to ministerial papers under future Governments. This arrangement has been broken by the Scottish National Party Government in Scotland during these past seven years—I think quite disgracefully. Therefore, I enthusiastically support the recommendation of the committee. This issue should be agreed in advance of the general election in 2015, and whatever agreement is reached should be adhered to by whatever party is in government afterwards. The situation in Scotland today, where Nationalist Ministers see the papers of previous Administrations in advance of the previous Administration being consulted about public access to those papers, is disgraceful and should not be repeated in Whitehall or at Westminster.

The third issue that I want to mention is that of collective responsibility. In paragraphs 77 to 79, the committee makes valuable recommendations about the operation of collective responsibility. Over the past four years, we have seen the difficulties that can arise when collective responsibility is not adhered to, either publicly or in many cases privately and off the record under this coalition Government. One of the strengths of our coalition in Scotland was an adherence to collective responsibility, not just in public but in private, too. There were almost no instances of individual

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Ministers briefing against each other off the record to newspapers during my time as First Minister. That should be the case in all coalition Governments, so I strongly support the committee’s recommendations.

However, I do not agree with the committee on the parliamentary endorsement of the coalition agreement. Collective responsibility would be strengthened if a coalition agreement was put to a vote in Parliament, in addition to the vote on the Queen’s Speech and the legislative programme. So there I depart from the committee’s recommendations in paragraph 60, where it does not support that approach. I think that a parliamentary endorsement of the coalition agreement would be a very good thing.

There are 12 months to go until the 2015 general election. I can say right now that being in a coalition Government will get more difficult over those 12 months. I may be stating the obvious, but the final 12 months will be a real challenge for all concerned. However, it is not impossible for a coalition to stick together to the very end. I predicted in May 2010 that this coalition would stick together and I believe that it will. If those involved are mature enough to be able to set out mechanisms for working behind the scenes as well as in public and to continue to prioritise their programme for government, this coalition will last the full five years.

I hope that it does not experience too many difficulties during the election period. The noble and learned Lord, Lord Wallace of Tankerness, and I did have an experience in April 2003 when we had to deal with an important emergency issue and make a decision, breaking off from the campaign trail and abusing each other in public to make an agreement in private to ensure that school meals in Scotland were adequately provided for following a change in the UK Budget. There will be moments when people have to talk in private and in public, but they should also be perfectly capable of campaigning against each other publicly and at the same time putting a proper choice to the voters for the next Government.

Like everybody else, I presume, I would have preferred that Labour had had a majority in the Scottish Parliament when I was First Minister, and we could have implemented more of our programme and less of the programme of others; but we did not. We had to compromise. We had to work with the result from the electorate. Despite the fact that at the time we were working in unusual circumstances, bringing together coalitions for the first time in the UK in peacetime, the reality was that we made a huge difference by putting the interests of Scotland ahead of our parties and making that Government work.

There was at least one benefit aside from implementing the programme. In a coalition government, some of the extremes that you see in a single-party Government—legislation not being properly thought through, the instincts of Prime Ministers or First Ministers going ahead of common sense and due deliberation inside the party, never mind outside it—are not there because the challenge between two parties in a coalition can improve in decision-making. While it may be frustrating and difficult at times, there can be benefits from a

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coalition Government; we should not put ourselves in a situation where we would regret or feel too disappointed about losing an opportunity to govern alone after the next general election in the UK. The country should come first.

The UK has many proud traditions that help us govern successfully and set an example of governance around the world. The protocols and conventions—parliamentary accountability, the principle of collective government responsibility and all the other issues addressed in this report—are examples of the way in which coalition government can work for the people for the country, not just for the politicians who assume their positions in that Government. I readily endorse the recommendations of the report and hope that the Government and the Official Opposition will take them on board in advance of May 2015.

7.20 pm

Baroness Falkner of Margravine (LD): My Lords, I cannot help but start by thanking our chairman, the noble Baroness, Lady Jay of Paddington, for the service that she has given to the House in chairing the Constitution Committee. Her seniority, her experience and, above all, her effortless charm in keeping us to the disciplines—there are quite strong personalities around the committee—were in play in almost every meeting. We will miss her. It will be very different to serve on the committee without the noble Baroness.

In 2010, I had the honour of being the first Liberal to speak from the government Benches in a new Parliament in the post-war period. The last time the Liberal Party had come into government was in the 1930s. Therefore, it has not been entirely surprising to me that Britain’s constitutional conventions over the past 80 years or so have been formed on the basis of single-party government. We had much material to work on in this inquiry but, as our report points out, the pluralism of party politics that the public have now embraced is a trend that may well continue for some time. Our inquiry therefore had not just to look carefully at the events of the past four years but to anticipate other permutations and formulations that might be thrown up in future.

In my coverage of the report, I want to highlight just a few points. The noble Baroness, Lady Jay, gave a comprehensive view of most of our findings but, particularly in the light of the peroration of the noble Lord, Lord Strathclyde, it is important for me to illustrate and highlight some of the more dramatic moments in our deliberations on this report.

I was a member of the Constitution Committee at the time of its report on the Fixed-term Parliaments Bill. While I heard all the arguments, I continue to be slightly surprised that the idea of a fixed term continues to frustrate constitutionalists in some quarters. If it affects government formation negotiations by making parties look at alternatives to minority government, surely that is a good thing. Minority government is the antithesis of the stability in decision-making that is needed for the economy, business and policy planning; in my own area of work, it is seen as extremely damaging to the conduct of foreign affairs. That is not the reason why the public are opposed to it, but we

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also know that the public are opposed to repeat elections. I therefore agree with two of our witnesses, the noble Lord, Lord Adonis, and Oliver Letwin, who told us that having fixed-term Parliaments allowed Governments to plan for five years, thereby enabling them to think long term.

I also emphasise the importance that the committee placed on the right versus the duty of an incumbent Prime Minister to remain in office until a successor is identified, particularly as we come up to the 2015 general election. The one observation that I would make in that regard is that, given the language deployed in the media in referring to an incumbent Prime Minister—the noble Baroness, Lady Jay, gave us some of the colourful highlights relating to the previous Prime Minister—it would be extremely helpful if the Cabinet Office undertook to advise the media on the desirability of this expectation and its place in our constitutional framework.

Let me turn to the convention of collective ministerial responsibility. We had a lively discussion with experts, witnesses and among ourselves about this during the inquiry. The report mentions the departures from collective ministerial responsibility as seen in 2013 when the two parties of the coalition voted in opposite Lobbies on an amendment to the Electoral Registration and Administration Bill. That decision was announced by the Deputy Prime Minister some six or seven months earlier as a response to the collapse of the House of Lords Reform Bill, so it did not come entirely as a surprise. I would have thought that, given the self-interest of the Conservative Party in those proposed boundary changes, seven months of reflection on what might happen might have led to the Conservatives reappraising their position on House of Lords reform, but it was not to be and we had a good debate about it.

The committee felt strongly that collective responsibility has served our constitution well and therefore emphasised that breaches of it should be rare and only ever a last resort. Moreover, it went on to recommend that a proper process should be put in place to govern any setting aside of the responsibility, stating:

“Such setting aside should be agreed by the Cabinet as a whole and be in respect of a specific issue”.

While I entirely agree with the recommendations of the committee as set out in paragraphs 77 to 79 where there is single-party government—particularly as collective responsibility was breached in recent memory in quite significant terms by the Labour Government—I do not think that we have been entirely realistic in these recommendations where they apply to coalitions. For example, the duty of the Cabinet as a whole to resolve differences is somewhat difficult when five members of the Cabinet are from one party and nearly 20 are drawn from the other. It is self-evident that the majority can always outvote the minority. My preference would be for the pragmatism of David Laws MP, to whom the noble Lord, Lord Strathclyde, referred, who felt that when agreements are made and subsequently diverted from there are naturally consequences for other agreements.

The noble Lord, Lord Strathclyde, has contested this version of history, so let me put to him that in my view the more fundamental breakdown of collective responsibility was witnessed in the House of Commons

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debate on the Queen’s Speech in 2013 when one side of the Government—the Conservatives—tabled an amendment on their own Government’s programme. The noble Baroness, Lady Jay, referred to this in her speech. The PM went on to give those Conservative rebels a free vote, although it was evidently not an issue of conscience, and we had the spectacle of junior Ministers voting against their own Government without any consequences. Our report states:

“Dr Stephen Barber … said, that ‘the acquiescence by the Prime Minister to allow ministers to vote “against” provisions in the Queen’s Speech ... is constitutionally more serious’ than the division between coalition partners over the boundary review amendment to the Electoral Registration and Administration Bill. This is because of the role of the Queen’s Speech as a vote of confidence in the Government … previously any minister who declined to support the government on the Queen’s Speech would have been expected to resign”.

In the instance of the Conservative rebellion on the Queen’s Speech, I took the opportunity to ask the Deputy Prime Minister, when on 9 April he came to have his annual evidence session with the committee, how that had transpired. If I recall correctly—I have not seen the transcript yet—the Deputy Prime Minister told the committee that the issue had not been raised in a Cabinet committee and was not even discussed in the quad. Therefore, in terms of a rebellion where the Prime Minister gave the Conservative rebels a free vote, the committee’s recommendation that these sorts of things must be discussed and a resolution must be sought within Cabinet clearly could not have applied, because the issue was not raised in Cabinet.

The last point that I will make about collective responsibility again relates to the noble Lord, Lord Strathclyde, for whom I have the profoundest respect, as he well knows from my interactions with him. The anecdote that he just told on how, but for his intervention, there were not meant to be any Liberal Democrat Ministers in the House of Lords was an example of a little breach of collective responsibility. If that sort of evidence were to come out, I would have expected it to be in the noble Lord’s memoirs, which we would be rushing off to Waterstones to buy. Saying it first in giving evidence to our committee and repeating it in the Chamber of the House stretches collective responsibility, because that discussion clearly took place in Cabinet. I fear that the noble Lord wishes to come back on that.

Lord Strathclyde: I shall say two things in my defence. First, I had not been appointed, so there was no collective responsibility issue. Secondly, and perhaps more important—this is something that I did not say but should have said—this was born out of a misunderstanding by the Deputy Prime Minister about how Ministers are appointed in the House of Lords. Given that the Liberal Democrats are so deeply federalised, he assumed that it was an issue that would be solved in the House of Lords, which is perhaps rather a different slant from the one that I gave in the first place.

Baroness Falkner of Margravine: I am sure that we all appreciate that clarification. Nevertheless, I am not sure that any of us will not use it to give Mr Clegg a hard ride next time, if there is a next time.

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Let me conclude by coming to the role of the Civil Service. I will touch on this issue merely to say that both we and the Institute for Government, in its more extensive study, heard about the difficulties encountered by a junior partner in government, represented by a junior Minister, when commissioning policy advice. I wholeheartedly agree with the committee’s recommendation that Ministers should be able to commission confidential briefings from officials within their departments for the purpose of developing policy for the next Parliament without those briefings being disclosed to Ministers from their coalition partners. If this practice were not formalised, we would be in the invidious position whereby, although the Opposition would have access to Civil Service advice, as would the party that hosted the Secretary of State in the department, the Lib Dems, where they had only a junior Minister, would not have access to policy advice. That cannot be right. I look forward to the Government’s response on that matter and join the noble Baroness, Lady Jay, in expressing disappointment that the Government have not been able to provide a response before the debate today. I can only assume that the Government have failed to come to a collective view on this.

To conclude, it was a fascinating inquiry. Our witnesses were extremely knowledgeable and, particularly the political ones, often passionately engaged with the issues. I hope that the Cabinet Office will take the opportunity to act on the recommendations of this report. In so doing, it will lend clarity in future scenarios, when the public may yet again choose coalition government. The report’s recommendations on collective responsibility stand for single-party government as well, so the report contributes overall to good and accountable government.

7.31 pm

Lord Butler of Brockwell (CB): My Lords, I congratulate the Constitution Committee and the noble Baroness, Lady Jay, on this excellent report. If it is to be her swan-song as chairman of the committee, it is a fitting culmination of a series of reports by the committee, which have been very valuable and, in this case, raise issues that need to be considered before the next general election—which I think it is more probable than some previous speakers have thought may result in another coalition.

As the noble Baroness said, the present coalition has changed our constitutional conventions—I was glad to hear her say constitutional conventions, not constitution—in some significant and surprising ways. The first example, to which reference has not been made tonight, was, of course, the Fixed-term Parliaments Act. I opposed this in your Lordships’ House. If the Conservatives and Liberal Democrats chose to make an agreement about the timing of the next general election, that was their choice, but a number of us felt that they had no need or right to bind future Governments. Now we are seeing the problems caused by the fixed term. Having exhausted the measures in the coalition agreement, the Government are finding it difficult to agree on new policies—and they will find it increasingly difficult to do so as they seek to demonstrate their separateness in the year leading up to the general election.

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As a result, we are already seeing that Parliament has very thin gruel to work on. We await the programme in the Queen’s Speech for the next Session with no lively expectation that it will be substantial. Meanwhile the Government are looking divided and weak, more concerned with washing their dirty linen in public than with running the country. If I may say to the noble Baroness, Lady Falkner, we have heard a certain amount of that sort of recrimination already in the speeches tonight—and that is nothing compared with what we will get over the course of the next year. I think a case could be made that the country would have been better served by bringing this Parliament to an end now so that a new Government could be elected with a fresh mandate.

I want to concentrate the remainder of my remarks on preparations for the next Government and the role of the Civil Service in the lead-up to the general elections, to which reference has been made. When the noble Lord, Lord O’Donnell, and I gave evidence to the Constitution Committee in its preparation of this report, we emphasised two things. First, there should be a level playing field between all three main parties, with their being treated equally and having equal access to advice. The noble Baroness, Lady Falkner, referred to that. Secondly, we suggested that the scope of the confidential discussions between the main political parties and the Civil Service should be extended somewhat so that the Civil Service could give advice on the parties’ plans, particularly on the practicability of their implementation, and that the Civil Service should not just be in listening mode.

The Institute for Government has recently produced two very sensible reports on this subject, in which it makes similar points. It has drawn attention to the dilemma in which civil servants may find themselves when there are two main parties in government and one main party in opposition. The two parties in government will have diverging approaches to policy as the election draws near—and, as has been said, they may want to keep some of their ideas confidential from their partners in government. The Institute for Government rightly said that civil servants in this situation need clear guidance on how to deal with that problem. What should that guidance say?

During the period leading up to the general election, the Government must continue to govern and are entitled to full assistance from the Civil Service on any matter of government policy. So it seems to me that a clear distinction needs to be made between what the Government continue to do as government and what the political parties are preparing as parties. In other words, the Civil Service must continue to give full support to what is decided by the Government as matters of collective responsibility, and that requires making it quite clear what those matters are that have been decided by collective responsibility. But when the parties go their separate ways in preparing proposals for their manifestos, the Civil Service should act as it normally would in relation to political parties in pre-election mode. This should not mean that it can give no advice on party proposals; as I said, there would be advantage in their being given such advice, particularly on practicability. But all three political parties should be treated in this respect in the same way.

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As far as the parties within the Government are concerned, this will put extra weight on distinguishing between what decisions are made by collective responsibility and what are not. Clear procedures need to be put in place to distinguish between the two. It has been reported that the Prime Minister has decided that confidential discussions between the Civil Service and the Opposition can start six months before polling day—namely, in the autumn. So there is plenty of time for this guidance to be put in place.

Before the last general election, as has been said, the Cabinet Office, under the leadership of the noble Lord, Lord O’Donnell, performed a very useful service in publishing a draft chapter for the Cabinet Office manual on the rules of the game in the event of no party gaining an overall majority in the election. That publication in draft provided an opportunity for outside observers, including Select Committees, to comment on those rules of the game. This achieved a much greater understanding and acceptance of the conventions than there would otherwise have been, and that was very valuable in the uncertain days immediately following the general election.

I hope that the Cabinet Office will similarly publish draft guidance for consultation on the role of the Civil Service in the lead-up to the general election. If that is to be done, and the discussions are to start in October, that cannot be long delayed now. Perhaps the Minister in replying will be able to give the House some information on what the Government intend in that respect—information that would have been included, no doubt, in the Government’s formal response to the committee’s report but which now needs to be made public.

7.40 pm

Lord Crickhowell (Con): My Lords, my first task is to thank the noble Baroness, Lady Jay of Paddington, for her admirable introduction and for the manner in which she has chaired the Constitution Committee during all the time that I have served on it. She has done so with great effectiveness, judicious fairness and sensitivity to the views of all members of the committee, whatever their political backgrounds. We are also fortunate to have been served by special advisers and policy analysts of outstanding quality and expertise and excellent clerks. I add my thanks to all of them.

I want to concentrate on collective ministerial responsibility and cabinet government, subjects on which we laid particular emphasis in our report. We did so partly because of the strength of the views expressed by our witnesses, academic and political. The Ministerial Code, Cabinet Manual and the coalition agreement all state that the principle of collective responsibility applies,

“save where it is explicitly set aside”.

The coalition Government’s programme for government specified five issues where the parties in the coalition might adopt different positions. They are set out in paragraph 68 of our report. The convention of collective responsibility is constitutionally important for two main reasons. First, the process of collective decision-making within government makes it more likely that better decisions are reached. The second is that it enables Parliament to hold the Government as a whole responsible for their policies, decisions and actions.

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Collective responsibility also imbues a Government and, indeed, Parliament, with authority. When the discipline it imposes is departed from, the authority is undermined.

We fully recognise, of course, that the parties in a coalition will not agree on everything and that from time to time they will differ. Any noble Lord who has attended this Parliament would find it very difficult to be blind to that fact. However, we say that,

“it is incumbent on ministers to seek to reach a collective view on issues wherever possible … Given its constitutional importance, the setting aside of the convention … should be rare, and only ever a last resort”.

We had hoped to discuss the issues with the Deputy Prime Minister before we concluded our deliberations but because of a family funeral that meeting could not take place. However, on 9 April, after the report had been published, the committee pursued the issue in the annual evidence session that we have with him. The Deputy Prime Minister said that one consequence of coalition government had been a,

“rejuvenation of collective decision-making and collective discussion within government, because you have to be open with each other if you are seeking to make decisions that bind two parties in a government”.

He spoke of,

“the rejuvenation of the Cabinet committee system”.

The committee did not seek to contest that view, although we had learnt in the evidence sessionsthatagreat many potentially contentious matters are resolved in the so-called “quad”, a kind of inner Cabinet which seems to take a great many more decisions than the Cabinet itself. What we were concerned about was collective ministerial responsibility and the breaches of the convention as it had previously been understood.

In response to a question from my noble friend Lord Lang of Monkton, the Deputy Prime Minister told us that it was important that when decisions are arrived at collectively they are defended collectively. My noble friend commented that that,

“seemed to imply that there is no collective responsibility unless specifically agreed. The agreement of 2010 says that there is collective responsibility unless it is specifically disagreed. You seem to think that those statements are compatible. It seems to me that they are not”.

Replying, the Deputy Prime Minister said that it was,

“an almost academic suggestion that collective responsibility can apply to decisions that have not been taken collectively”.

When I took up the argument, the Deputy Prime Minister agreed that some issues had been anticipated but said:

“There is a second category of issues: issues that you cannot anticipate on which the government cannot come to a collective agreement”.

He cited the Leveson inquiry and the decision that he should speak and offer a different point of view alongside the Prime Minister. He told us that that decision was “formally agreed”. He reiterated:

“Collective responsibility is how decisions are discussed, decided upon and then defended when collectively agreed within government. Collective responsibility is not a doctrine that says that coalition parties cannot disagree with each other in public”.

We were then told that where the convention of collective responsibility had been set aside explicitly, the decision had been taken,

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“formally … within Whitehall by the Cabinet Secretary, in consultation with me and the Prime Minister”.

I do not believe that I was alone in being surprised—perhaps I should say astonished—by that revelation. The decision to set aside the convention was apparently being taken not by the Cabinet but by the Cabinet Secretary after consultation with the Prime Minister and the Deputy Prime Minister. That, we were told, is what happened in the case of the Leveson inquiry. The Deputy Prime Minister said that these decisions,

“are vetted and overseen by the Cabinet Secretary”.

Surely, it is a remarkable new constitutional practice that decisions of this kind about an important constitutional convention appear to depend upon a decision of the Cabinet Secretary. The guidance given in the Scottish Ministerial Code shows that it is possible to handle these matters differently. It states that,

“all decisions reached by the Scottish Ministers, individually or collectively, are binding on all members of the Government. It follows from this that every effort must normally be made to ensure that every Minister with an interest in an issue has a chance to have his or her say—in an appropriate forum or manner—before a decision is taken”.

Exactly the same principle should apply in the rest of the UK.

What happens in practice? Does the Cabinet Secretary say to the Prime Minister and the Deputy Prime Minister, “Have you circulated papers to every Minister with an interest or had a meeting of the Cabinet to see if agreement can be reached?”. No, he certainly does not say that because he will know that nothing of the kind will happen. Or does he say, “Well, I have listened to this discussion and it is all too obvious that you can’t agree, and so I certify that there is no collective agreement”? I do not consider that this is a proper role for the Cabinet Secretary or an appropriate way of explicitly setting aside the principle of collective responsibility.

In any event, as we have heard, some of the most extraordinary breaches of collective responsibility have taken place without the supervision of the Cabinet Secretary or as a result of any formal proceedings. We have been told about the decision of the Liberal Democrat Party to vote in 2013 on an amendment to the Electoral Registration and Administration Bill delaying the review of parliamentary constituency boundaries in breach of a policy contained in the coalition agreement. It was taken personally by the Deputy Prime Minister who was angered by the withdrawal of the House of Lords Reform Bill.

My noble friend Lord Strathclyde, whose strong views have already been quoted, pointed out that the coalition agreement had been that the boundary review would take place in return for there being a referendum on the alternative vote. The noble and learned Lord, Lord Falconer of Thoroton, who has also been quoted, said that the action,

“was wholly undermining of the process by which you should conduct yourself within government”.

He thought that departures from collective responsibility weakened the,

“authority of the Prime Minister and the Government”.

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We also heard the strong criticisms made by Dr Stephen Barber about,

“the acquiescence by the Prime Minister to allow ministers to vote ‘against’ provisions in the Queen’s Speech”.

In paragraph 76, we give the reasons why so many of our witnesses believe that the abandonment of collective responsibility, other than in the most exceptional cases, is hugely damaging to good government. The unseemly row going on at present in and around the Department for Education is another example of behaviour damaging to good government. Is it really not possible to reach agreement on policy about the law concerning the carrying of knives without having a great public argument about it outside Cabinet committees? The committee strongly believes that,

“it is incumbent on ministers to seek to reach a collective view on issues wherever possible. Having reached a collective view, it is essential that they can be held to account for it … A proper process should be in place to govern any setting aside of collective responsibility. Such setting aside should be agreed by the Cabinet as a whole and be in respect of a specific issue”.

The process involving the Cabinet Secretary described to us by the Deputy Prime Minister after we had produced our report is not, in my view, a proper process. Whether the Deputy Prime Minister’s comments represent a collective decision taken by the Government, and for which they can be held accountable, is not known because, very regrettably, as we have heard and not for the first time, the House has been debating a report of a House of Lords committee to which the Government have failed to produce a response in the two months referred to in the Companion. I know that my noble friend who will respond to this debate will do his best to deal with the points that have been raised, but we should have been in the position where we could debate the Government’s response and not just our report. Perhaps, as the noble Baroness, Lady Falkner of Margravine, has observed, there is no collective ministerial view about the conclusions reached by the committee.

7.52 pm

Lord Tyler (LD): My Lords, I hope that the noble Baroness, Lady Jay, has taken pleasure not only from the credit that has been given to her for her stewardship of the committee and the very valuable report, but from how interesting this debate has been. That is also a considerable tribute to her and her committee. The temptation is, however, to pick up some of the interesting range of issues and stray a long way from one’s intended text—and, I fear, bore the House.

However, I want to take up just one point made by the noble Lord, Lord Butler, who knows I have great respect for his views. I do not take the view that the fifth year of this Parliament will be a complete waste of time just because we do not have a whole lot of new laws being put before us. Ministers too often think that it is of great importance and virility to have some great Bill put before Parliament and that otherwise they think that they will not really exist in the public mind or among their colleagues. If we spend some time in this next year on post-legislative scrutiny and look at how successful or not some of the previous laws have been, that would be a valuable lesson for us and, in that respect, the Fixed-term Parliaments Act could well prove to be a real success.

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I am delighted that my noble friends Lady Falkner and Lady Grender, are contributing to this debate—my noble friend Lady Falkner because of her contribution to the committee, and my noble friend Lady Grender, as I am sure colleagues in your Lordships’ House will discover, because she will bring to the debate an interesting view about the way in which some of these matters have been happening in the recesses of a coalition Government.

I confess to the noble Baroness, Lady Jay, and the House that I approached the report with some trepidation, because I thought that it might be narrow and cautious, and even take a rather conservative view. I thought that we might be looking at just the way in which we somehow deviated over the past four years from the great conventions of the past. That has not been so. As someone who has always been keen on having a written constitution, there are moments when I have said over the past four years, “Thank God we haven’t got one” because we have been able to evolve to meet the requirements of the situation.

Here in the committee’s report is an interesting recognition of the political facts of life. As paragraph 2 of the report rightly points out:

“Trends in voting behaviour, with fewer votes for the two largest parties and an increasing number of MPs representing smaller parties, make it increasingly possible that hung parliaments will recur”.

Ironically, the other place, which ought to be much more responsive to changes in the views of our fellow citizens, seems to be still stubbornly bipolar by comparison. With that in mind, it seems right to consider the constitutional implications in light of the essential job that a balanced Parliament has to do on behalf of the nation—that is, to give life to what the electorate have instructed, albeit with what most people would regard as an inconclusive result. This is the first peacetime majority Government since 1931. That is to say it is a Government whose MP supporters were elected by more than 50% of those who voted. Those who are in favour of minority Governments should think carefully about the example of the summer of 1974, when a Government who had no majority did nothing useful whatever, ended up with an early general election and there was then an unstable Government thereafter.

Those who voted in 2010 for the governing parties would probably disagree on many issues were they were to meet around a focus group table or a table in a pub. After all, if they had all felt the same, they would have voted for just one party. They did not. We should therefore be relaxed about the fact that their representatives in Parliament and in government sometimes disagree, too, sometimes openly. That may be better than the sort of divisions that were clearly behind the scenes in the previous Administration, as we now know from so many autobiographies and diaries.

Collective responsibility in all Governments—particularly in this one—is like the security services: you only find out about their failures but never hear about their successes. Despite all the inevitable journalistic craving for “coalition splits”, this Government have succeeded in upholding collective responsibility much more often than they have failed, with agreements reached more often than differences have been aired.

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By far the majority of the coalition agreement has stood the test of tensions between the parties. Where collective responsibility has been absent is where collective agreement has been absent, too. One is necessarily dependent on the other, and where a party has not signed up to a particular policy in a coalition agreement, its leadership within the Government cannot always be bound to a position preferred by the other coalition partner.

A generally successful Government would surely aspire to the committee’s recommendation in paragraph 78 that setting aside collective responsibility should be rare. I agree very much with my noble friend Lady Falkner on the example picked out in paragraph 73—in contrast to my other noble friend Lord Strathclyde, who made a meal of the other example given in an earlier paragraph. How rare will always be determined in future balanced Parliaments both by Harold Macmillan’s famous phrase “Events, dear boy” and by the depth and breadth of the agreements reached between the parties to a future coalition.

For that reason, the committee’s recommendation at paragraph 26 that there should be a full 12-day interval between the general election and the meeting of a new Parliament is really important. The coalition worked with extraordinary speed in agreeing a programme and an Administration at a time of grave economic risk for the whole country. Future coalitions should not have to work in such circumstances. Five days to determine the programme for five years of government is not necessarily sufficient. Indeed, international experience suggests that even 12 days might be a push. However, the idea that our country would grind to a halt if a change of government took even 28 days seems excessive. The wheels of Whitehall would keep on turning. It would just be a little longer before big changes in policy could be effected and big announcements could be made.

Incidentally, I believe that the one really serious omission in the committee’s report is what seems to be a failure to take account of other mature democracies’ experience. It is surely excessively insular—perhaps even xenophobic—not to take some notice of the extensive coalition experience of our continental neighbours and partners. Some of them may, as we all know, take excessive time to knit together coalition agreements, but other aspects of their arrangements may well give us useful insights. As with collective responsibility, I do not believe that the British people would be that worried about delay in the same way as the British 24-hour news media seem to be. Any repeat of the ludicrously overblown warnings of imminent Armageddon from Conservative newspapers in May 2010, with dire foreboding of a hung Parliament and parliamentarians being hung from the lampposts, will hardly seem credible in the future.

I believe that the committee has put its finger on the right way for the House of Commons to endorse a Government, once in place. I do not agree with those who, even this evening, have suggested that an investiture vote for a Prime Minister would be to endorse the person. I do not believe that is appropriate, so I am glad to see that it is rejected by the committee. Why should a junior coalition partner endorse a person of

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another party to be Prime Minister per se before the negotiations on programme and team have taken place and been concluded?

To my mind, in any case, a really important constitutional principle is that the House of Commons, newly elected by the nation, should be investing its confidence in the new Government—both their programme and their personnel—at the end of the Queen’s Speech. The committee is absolutely right on that point. Otherwise, taking the Prime Minister out of that equation would imply a further and, I think, entirely improper drift towards presidential governance. What makes a coalition fit together is a programme on which the parties can agree, even if the people—the characters—involved later prove to be important glue sticking it together through the ups and downs of political fortune.

As has already been referred to, the Institute for Government has done excellent work in recent months in this Parliament, studying how the political structures in Whitehall have responded to the coalition. It has found that by and large our constitutional arrangements, following the political circumstances of the time, have proved up to the job. That is the essence of the system. I understand that this very day Peter Riddell has been giving evidence to the Public Administration Select Committee at the other end on behalf of the Institute for Government. I pay tribute to him and his team for the work they have done.

Even if we did benefit from a written constitution, as almost every other mature country does, the day-to-day decision-making of a Government comprising two or more parties could not be constrained to pretend that they are one party. It is wrong and it should not be so. The political fortunes of both partners depend on their distinction from each other, while the fortunes of the country depend on the partners working together. Two or more parties working together make for better government and for better politics too, but inevitably that is the politics of disagreeing where you have to— that is what it is all about—and seeking agreement as best you can. At least it is done transparently in contrast to many of the single-party Governments of the past.

This Government, and the past four years, have shown that it is possible to secure both that disagreement, which is inevitable in politics, and also that measure of agreement to produce good governance. Even the Westminster Parliament, with all its pomp and flummery, has responded because it has needed to. The committee of your Lordships’ House has performed an extremely valuable function in demonstrating how that has been undertaken. Its analysis and advice will guide us to good effect, whatever the parliamentary arithmetic in May 2015 and in future general elections. I suggest to your Lordships that many of the lessons will stand equally well for single-party government as for coalitions in the future. I particularly endorse the view of the noble Lord, Lord McConnell. I hope that the recommendations will be taken seriously not just by the present Government—and I hope that there will be collective responsibility in their response to this—but by the opposition party, because between now and May next year the lessons of this report will stand us in very good stead.

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8.05 pm

Lord O'Donnell (CB): First, I add my congratulations to the noble Baroness, Lady Jay, and her committee on producing an important and timely report. I broadly support the conclusions and I very much hope that Ministers and—picking up on what was just said—the Opposition will implement the suggested changes. I should also note that I agree very strongly with my illustrious predecessor, my noble friend Lord Butler, on the points that he has made, with one exception: I am with the noble Lord, Lord Tyler, on the question of fixed-term Parliaments. I think they are a good thing.

I want to make one practical point. We have a very large number of Select Committees in this House and the other place. We have a period between now and the election. Would it not be great if all the Select Committees looked back on their reports and recommendations and produced a short note on what has been changed as a result and those things where nothing has happened? Not only might this tell us about the effectiveness of the committees but it might stimulate a bit of debate about whether the Government have responded in line with the recommendations or have decided not to take them up. In the run-up to manifestos being produced, it might generate some interesting material or policies. That is my first suggestion.

Tonight, I want to take the opportunity to look forward to the next election rather than backwards, and I will argue that the past is not necessarily a good guide to the future. We have already had a lot of discussion about different interpretations of the past and I look forward to them being elucidated further in the many memoirs to come—which will not include mine.

Many have commented on the committee’s suggestion that the principle of collective responsibility should be set aside only very rarely. I strongly endorse that principle, but I have to acknowledge that the coalition parties have agreed that they will fight the next election as separate parties. As the first parties came down the steps at Downing Street, I, for one, felt that we were at the high point of the coalition. I expected that, as we got to the point where the election was formally called, we would be at the low point and that there would be a curve in that direction. I got out at the top point. However, let us be clear that this was inevitable. To me, it was entirely predictable and that curve has gone entirely as I expected.

Ahead of the next general election, let us think about what the Civil Service will have to do. I believe in the Boy Scouts’ motto, “Be prepared”. It is very important that the Civil Service prepares itself for all possible outcomes. We heard the noble Lord, Lord Strathclyde, ask whether we will have another coalition, although he believes it is unlikely. As the noble Lord, Lord Tyler, said, the pollsters are very clear that the long-term decline in the share of the vote going to the two main parties is apparent in the data. It is a really interesting question and it is rather difficult to predict what is going to happen next time. I intend to spend a little time, in a very nerdy way, modelling that process but it will be very tricky. However, I think that the Civil Service will need to work not on the basis of

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those predictions but on the basis that it should prepare for all possible outcomes. I would certainly include more work on minority Governments than was done on previous occasions and—something that people have not picked up on—I would certainly think about contingency work, looking at scenarios following all possible results in the Scottish referendum. People may decide that they want to do this contingency work once they know the result of that referendum, but one thing that will help the Civil Service is having a complete

Cabinet Manual

and not just a draft of one of its chapters.

One thing that I will try to keep to in my comments, which not many other people have done, is that in the Civil Service preparations ahead of last time we decided we would use the term “unclear result”. People have referred to “inconclusive results” but the terms “hung” and “balanced” are rather unbalanced and therefore “unclear result” is the best way of thinking about it.

Picking up on what both the noble Lords, Lord Strathclyde and Lord McConnell, have said, there were a number of myths about coalition. One of them was that you had the lowest common denominators and that they would not do very much. We have had ample evidence now that that is not true. Whether or not you think they have done the right things, they have made large changes.

On the points that were made about the kind of Government that we have got, on comparing coalition with single-party government it is certainly my experience that the Cabinet committees have done a great deal more of the heavy lifting during coalition than has been the case during single-party government by both parties. While people talk about the quad doing a lot, believe me, smaller groups of Ministers before did quite a lot. The quad is relatively formal compared to some of those other occasions.

On the point about the length of time it might take before finalising a Government if there were to be an unclear result next time, this is important because a number of people have made the point about the media clamouring “to get on with it” and castigating the Prime Minister for staying. The excellent report makes clear that it is the Prime Minister’s duty to stay around until it is clear who will succeed him or her. It is important that we talk about the length of time.

This time it will be different. Let me give you five quick reasons why. First, the macroeconomic background will be, as the noble Lord, Lord Strathclyde, said, rather more favourable. I predict with a pretty high degree of confidence that the UK deficit will be much lower, growth will be higher and, with slightly less confidence, there will be no euro crisis going on. Secondly, the markets will have observed that coalition government is feasible in the United Kingdom—there were some rather silly remarks made last time—and that will make them more patient. Thirdly, it is likely that the two main parties might need to engage in more consultation with their MPs than they did last time. Fourthly, all parties in the negotiations might have made more commitments in advance, thereby restricting their room for manoeuvre. That will raise all kinds of complications. Finally, there may be all

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kinds of questions about the parameters of any negotiations with Scotland if there is a yes vote in the referendum.

For all those reasons, it will be important to allow the negotiators time to reach a durable agreement and for markets and the public to realise that such negotiations, judged by experience in continental Europe—I again think of what the noble Lord, Lord Tyler, said—will in general take much longer than five days. Indeed, it was a future Lib Dem Minister in the negotiations last time who pointed out to me that the average in Europe at that point, in 2010, was around 44 days. If we took the recent Belgian and German experiences into account, we might come up with a higher number.

None of what I have said should be seen as implying anything about the likelihood of an unclear result. It follows from the simple principle that civil servants need to be prepared for whatever emerges.

My overwhelming memory of the discussions in 2010—I hope I am not breaking any conventions here—is that all the key politicians behaved not only effectively but well and honourably. There were very few leaks during the talks and very little grandstanding to the media. I hope that that will be repeated. Many of the key civil servants are still in post and I know that they learnt a lot from their experience in 2010. I have no doubt that the Civil Service will do even better next time.

What can we, as parliamentarians, do to help? First, we have a duty to encourage increased participation in elections. The Hansard Society’s excellent audit of political engagement, of which we have all just received copies, makes particularly worrying reading. Eighteen months ahead of the general elections in 2005 and 2010, it found that the majority of respondents said that they were certain to vote. Now, for the same period, it is a minority. It concludes that,

“turnout may struggle to match 2010 levels next year”.

That is the society’s conclusion, not mine. It goes on to say that less than a quarter of the public believe that,

“Parliament encourages public involvement in politics”.

We need to consider how we can do something about that.

Television debates certainly encouraged and stimulated public interest last time. It is important that these debates are seen as having democratic legitimacy. I fear for this because, at the moment, negotiations are being conducted solely between a few parties and the broadcasters. That is not necessarily right.

I thank the committee. I threw a bit of a curve ball at it—as a witness you are supposed to answer questions, not pose them—when I said that I was worried about the question of access to papers, a point raised by the noble Lord, Lord McConnell. It has come up with a sensible suggestion. The absence of an answer in advance creates all kinds of problems and I hope that we can get a cross-party consensus around operating in that way.

Once again, I congratulate the Select Committee on an excellent report. It is very sad that there has not yet been a government response. I would love to be able to say that this would never have happened in my day but I fear that the evidence may not be entirely with me.

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I look forward to the Minister’s response and hope that a future committee, with as much wisdom and experience as this one has shown, will be able to tackle some of the issues I have raised today and come forth with another report which we can debate in this House.

8.17 pm

Lord Lexden (Con): My Lords, no one, I think, will seek to deny the importance of this report. I was very glad to be able to contribute in a small measure to the work on which it is based as a member of your Lordships’ Constitution Committee. I consider myself extremely fortunate to have been granted a place on this committee two years ago.

Reference has already been made more than once to the wise words of my noble friend Lord Norton of Louth—always in my view the surest guide on constitutional matters—who on this occasion is being kept, like the best wine, until last. He pointed out in the committee’s first evidence session that,

“this is the first time that we have had a coalition that has been the product of the arithmetic of the general election … we have not been in that circumstance before; we have had coalitions, but where one party has been dominant and could have governed on its own”.

Our past coalitions, dominated by one party, operated reasonably contentedly according to procedures fashioned under single-party government that the smaller party or parties within them were in no position to alter in any marked degree. Now a new pattern has been set. I am less sanguine than my noble friend Lord Strathclyde that it will not be repeated. I agree with the noble Lords, Lord Butler of Brockwell and Lord O’Donnell, that the likelihood is considerable. In any future coalitions, as in this one, a single party is unlikely to be in a dominant position. The electoral arithmetic will be decisive. It is as a result of the election of hung Parliaments—which, in the past, never ushered in a coalition Government at Westminster—that such Governments will almost certainly come into existence in future in peacetime.

The report is therefore significant and timely because it addresses the implications of this major change in our constitutional landscape. It puts forward clear answers to the chief questions that have been cast into such sharp relief by the experience of this first coalition Government of the new type. Like my colleague and noble friend Lady Falkner, I would like to touch on a few of them, returning for the most part—I hope I will be forgiven—to matters that have already been the subject of comment in this debate.

The report gives short shrift to ideas that have recently gained currency in some academic circles that would encumber the process of coalition-making with unnecessary votes of approval in the other place. Unlike the noble Lord, Lord McConnell, I do not think that we should add new requirements when long-established procedures work just as well for coalition Governments as for single-party ones. Any Government’s first Queen’s Speech provides a time-honoured test of whether they command the confidence of the Commons—and that is enough. I was glad to hear my noble friend Lord Tyler endorse that. Similarly, the committee concluded that no special arrangements are needed to provide sufficient time for coalitions to

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be assembled. Some 12 days are currently available, as the report points out. If a fortnight is sufficient to concentrate the mind of a condemned man, politicians—conscious, one hopes, of their duty to the nation and their sovereign—ought to be able to manage with two fewer days.

In its deliberations that led to this report, the committee devoted more time to the issue of cabinet collective responsibility than to any other. This has come up several times already in the debate. It aroused more concern than any other central constitutional question because of the cavalier manner in which it has been treated all too frequently in this first coalition Government of the new type.

There is the opposite danger that collective responsibility might come to be invested with an aura of sanctity. Undue veneration would be contrary to our traditions. Collective responsibility is a doctrine that has been set aside in the past, as the report notes, giving three 20th century examples. There are others. Even Mr Gladstone, the most unbending of constitutionalists, was capable of taking a highly pragmatic and flexible view. When one of his Cabinet colleagues voted against what became known as the Third Reform Act 1884, he reminded the offender of the elementary rule that Cabinet members should vote together, but added that,

“it would be most unfortunate were the minds of men at such a juncture to be disturbed by the resignation of a Cabinet Minister”.

As so often in constitutional affairs, it is surely all a matter of balance and degree. Frequent breaches of collective responsibility must be expected, as we have heard, to damage the reputation and diminish the authority of a Government, particularly if they come unexpectedly, out of the blue, and without being preceded by any collective Cabinet decision to set the doctrine aside. That danger has been amply illustrated in the past four years. It could be significantly reduced by following the recommendations in this report. The key passage has been quoted before, but it bears repetition:

“Where it is clear that no collective position can be reached on an issue, a proper process should be in place to govern any setting aside of collective responsibility. Such setting aside should be agreed by the Cabinet as a whole and be in respect of a specific issue”.

The report goes on to urge that such a process should be introduced now and operate for the rest of this Parliament. Recent events have perhaps added to the significance of that particular portion of the report, and perhaps at the end of the debate the Minister will tell us whether we can now look forward to an announcement that the necessary arrangements will be established. In my view, it is the most important contribution that this first new-style coalition could make to assist the provision of good government by coalitions that may follow in the future.

The report has attracted favourable attention not only in this House but outside it. George Jones, emeritus professor of government at the London School of Economics, has described it as “an historic document”. However, it has not yet, as we have heard, attracted comment from the Government, who have had it in their hands for three months. Their formal written response ought to have been delivered in April—but sadly, as we have heard from previous speakers in the

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debate, delay is far from unusual. I cannot recall a single government response to the report of a Constitution Committee inquiry that has been delivered within the prescribed period in the time that I have been on the committee. Last week, my noble friend the Leader of the House accepted that we need,

“prompt and accurate replies to … Questions for Written Answer”.—[

Official Report

, 8/5/14; col. 1574.]

I trust that he takes the same view for Select Committee reports.

No one connected with the Constitution Committee can fail to be struck by the consistently high quality of the service members receive from the committee’s staff and legal advisers. Sensible committees do not draft. The preparation of this report proceeded in the usual faultless manner under the chairmanship of the noble Baroness, Lady Jay of Paddington. I join other noble Lords in paying tribute to her at the end of her distinguished chairmanship.

8.26 pm

Baroness Grender: My Lords, I join other noble Lords in congratulating the committee on this report and the noble Baroness on leading this debate. It is a privilege to be speaking in a debate led by her.

There have been many predictions about the survival of this coalition Government. One of my personal favourites is from Peter Oborne, writing in March 2012, who said it would be finished by 2013. Last time a debate was held here, there were predictions that this place had a natural government majority and would become a rubber-stamping Chamber. I think if you spoke to any of the Whips today, they would strongly dispute that. Even at the start of this coalition, the civil servants game-planning the talks, as we have since learnt from the noble Lord, Lord O’Donnell, found that they could not reach agreement in their mock talks when they were preparing for the real ones—a prediction of failure before they even began.

For my own part, I was one of those rare creatures, a Liberal Democrat special adviser based in Downing Street, so I had a ring-side seat. You could even describe it as experiencing some white-knuckle rides that could be defined only as constitutional rollercoaster moments: the somewhat unexpected use of the veto by the PM at the EU summit in December 2011; the failure to reform the House of Lords in 2012; and the subsequent delay on boundary reforms that summer. All are examples of moments that shook the coalition. I must admit that, once or twice, I wondered how long it would take to clear my desk as the speculation mounted that the coalition would buckle under the strain.

However, in the end, because of the coalition, there have always been processes in place which ensured that the business of delivering government policies and plans prevails over disagreements between two political parties that are so different. It is the combination of both formality and transparency which has made this coalition work: from the Cabinet Secretary’s role to the daily meetings; from the return to cabinet government and the proper use of Cabinet sub-committees to the existence of the quad to resolve issues and plan major initiatives; and the back-stop of the coalition

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committee, which has met only twice. Of course, there have been disagreements, and on some issues they have been profound but, most of the time, the schedules and a business-like attitude have prevailed. I take this opportunity to pay tribute to the noble Lord, Lord O’Donnell, for setting up some of the processes which have served the coalition so well.

I recall one of the first meetings I attended was such a robust exchange that I was quite surprised by it. However, I soon learnt that conversations at the heart of government should be robust, just as they should be in any senior management operation of any organisation. Certainly, the stories in the press over the past few days suggest that “robust” has been taken to a whole new level, but I would speculate that by the time we get to the next general election many of the disagreements—genuine policy disagreements—will have been more transparent as a result of coalition. I hope that ways are found to ensure this level of transparency about all future Governments and not just coalitions. For instance, anyone can now go on the Government’s website and see the coalition agreement and what progress has been made in each area in that agreement. That is not something that was provided under previous Administrations.

There is, of course, an ongoing narrative that this form of government is a disgrace and that rows dominate. However, we must not lose sight of the fact that majority governments can and do row, factionalise and fall out, and this is not a symptom of coalition. It is about people and getting things done. After all, coalition has been a regular post-war feature in both Germany and Italy, but with varying results. I personally will never forget the astonishment I experienced when a Liberal Democrat MP described to me how a Labour Cabinet Minister had invited him in and given him a list of questions to use to probe another member of the Labour Cabinet. A mere glimpse inside the unpleasant world created by Damian McBride would show rows that dragged everyone down in a majority Government, including decent civil servants caught in the crossfire. Falling out is a fact of life in government. Keeping it to policy and away from personality and having processes that are used to ensure that should always be the goal. If anything, the processes and formality that have been necessary to serve two parties in government can only be an improvement.

I would like to touch on the role of the Cabinet Secretary and Permanent Secretaries, because I believe that they are more and more crucial to resolving these issues. Under this coalition, the Cabinet Secretaries have provided a necessary and important link between the Prime Minister, the Deputy Prime Minister, Number 10 and the Cabinet Office. However, as the Institute for Government points out in its latest report about the final year of coalition, some in Whitehall prefer the ambiguity. It goes on to say:

“Many in Westminster and Whitehall still behave as if the Coalition does not exist, or as if its existence requires only informal and temporary adjustments”.

I am sure that other noble Lords have heard stories from their friends in the Civil Service of arriving at a meeting to discover that no Liberal Democrats are at the table, and wondering what on earth to do about it. This is where I believe that the role of the Permanent

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Secretary in each department is vital. Permanent Secretaries should have sufficient objectivity and seniority to ensure that their departments are run with an understanding of two political parties in power. Their role as an honest broker is something the IFG has recommended. I would love to see some follow-up on this.

Like the Cabinet Secretary, Permanent Secretaries have a duty to deliver government policy and to help to plan and prepare for the next Government. The committee’s conclusions on the need for confidential briefings in the run-up to an election provide a sensible guide, and I really welcome that. I also welcome the useful examples from both the Scottish Parliament and the Welsh Assembly, shared impressively with us by the noble Lord, Lord McConnell. The success that he and my noble and learned friend Lord Wallace of Tankerness achieved at “conscious uncoupling” is an example to us all. The bromance is still there: we can see it in their eyes.

I would like to touch on one more specific area of constitutional change examined by the committee—that of the fixed-term Parliament. While it has been delivered by this coalition Government and it has provided a level of stability which was essential for economic recovery, I urge noble Lords to see this as a change which will enhance Government, whether it be majority, minority or coalition. Indeed, only this week the CBI expressed its concerns about political instability and the likely effect on business. A five-year fixed term provides all Governments with an opportunity to look before leaping. I cannot agree more with the noble Lord, Lord O’Donnell, that there is sometimes an obsession with driving through new pieces of legislation. I recall the opportunity that came up—if you can call it that—when Lords reform fell and there was time on the parliamentary agenda. That was an opportunity to use it in a much more creative and imaginative way than introducing more legislation.

As the recent Crewe and King book, The Blunders of our Governments, demonstrates, time and time again the speed and pace of policy change, without testing in advance, results in failure. I suggest that the well worn phrase, “hit the ground running” for a new government should drive fear into the heart of every elector. I remember watching Lord Callaghan—the father of the noble Baroness, Lady Jay—on a results programme at the start of the Government in 1997. When asked what they should do, he replied, “They should probably sit down and have a cup of tea”. At the time I thought—I assume so did the Blair Government—that he was completely wrong. I am now beginning to understand what he meant. A fixed term of five years no longer means you need to front-load every policy change into the first Parliament. A fixed-term Parliament provides the thinking and testing time to trial things and test out and research policy before it is introduced. It does not need that race at the beginning that we are all so used to culturally because we are used to having a scenario without fixed-term Parliaments.

Over the next year, there will be a need for greater clarity, particularly for civil servants. Again, the Institute for Government provides useful advice about the need to reach agreement at the top about the rules and that

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those rules should be published. I conclude with a useful lesson in fighting elections and working together: the example of the Eastleigh by-election. The battle was fierce, but at the same time the parties worked together in government with economic recovery as a core purpose. That is not only possible in a theoretical sense; this coalition, on all sides, has shown it can be delivered in a practical sense.

8.36 pm

Lord Norton of Louth (Con): My Lords, I am delighted that this important and timely report is being debated this evening. Like others, I congratulate the noble Baroness, Lady Jay, and the Constitution Committee on a valuable and prudent analysis of the constitutional implications of coalition Government. I was especially impressed by the committee’s analysis of the convention of collective responsibility. Its explanation of and justification for the convention are superb. I support strongly its recommendations in paragraphs 138 to 141. Indeed, there are no recommendations that I do not support, although—as I shall argue—there are some that I would wish to develop.