Constitutional Reform (Prerogative Powers and Civil Service etc.) Bill [HL]

My Lords, once more, I am kept off the grass. It is always particularly enjoyable when mistakes are made by elderly Queen’s Counsel in this House—I have noticed—who are notoriously bad on anything to do with the procedure, practice or customs of the House. The Bill places under parliamentary authority the executive powers exercised by Ministers by virtue of the Royal prerogative, including treaty making and going to war. It puts on a statutory footing the basic principles on which the Civil Service is based and the ground rules governing the relationships between Ministers, civil servants, special advisers and Parliament. It establishes a procedure for the approval of some key public appointments, and it provides for direct public access to the Parliamentary Commissioner for Administration—the Parliamentary Ombudsman. Each of those proposals has been raised in previous Private Members’ Bills that have won considerable support in this House and beyond. But on each occasion, the response of the present Government has been negative. When the Minister replies, we shall discover whether spring shoots of glasnost and perestroika are peeping above the ground during the transition from one Prime Minister to another. Gordon Brown, wrote encouragingly this week in the Guardian that,"““Britain is ready to shape a constitutional settlement . . . forging what will become a new compact between the local and the national, and between the executive and the legislature””." This Bill is an element in such a compact. It does not seek to strengthen direct democracy by giving more power to the people. It is about representative democracy and parliamentary sovereignty, not popular sovereignty. The principle of parliamentary supremacy is a fundamental principle of our unwritten constitution. According to that hallowed British principle, the Executive are accountable to Parliament rather than to the sovereign. But, as Lord Hailsham of St Marylebone famously observed in referring to our system as an ““elective dictatorship””, traditional British theory does not take account of the fact that, instead of Parliament controlling the Executive, the Executive usually control Parliament—or, at any rate, the House of Commons. What are termed Royal prerogatives are in fact Executive prerogatives—the prerogatives of Ministers of the Crown, derived from the divine powers of kings, now worn informally by Ministers in fashionable designer clothing. A central question raised by this Bill is: who should be sovereign—Parliament or the Executive? Another question is whether our present Parliament is willing to take the theory of Parliamentary sovereignty seriously by translating it into political and legal reality. The principle on which the Bill is based is that in our modem democratic society Parliament rather than the Executive should be sovereign, as was envisaged by those who made the constitutional settlement in 1688. That principle is shared by the Commons Public Administration Select Committee, chaired by Tony Wright MP, to whom and to whose work I pay a very warm tribute. The Bill is neither radical nor republican. Launching the Conservative Party’s new Democracy Task Force, its new leader, David Cameron, said:"““Giving Parliament a greater role in the exercise of . . . [prerogative] powers would be an important and tangible way of making government more accountable””." I agree, and I welcome the fact that Ken Clarke’s Democracy Task Force will consider the very matters which are the subject of this Bill, and which are core values of Liberal Democrats and of many in the Labour Party; namely, parliamentary accountability for treaty and war-making powers, the Civil Service, and public appointments. It is those common values that informed the Cook-Maclennan agreement on constitutional reform and we need to draw on them again across the parties in developing the next stage of constitutional reform. I turn briefly to the Bill. Part 1 places under the authority of Parliament executive powers exercisable by Ministers by virtue of the Royal prerogative. Special provision is made for treaty making and war powers. Treaties reach into every nook and cranny of our lives. It is anomalous that Parliament has almost no role in the process of ratification of important treaties and it is done entirely under the prerogative. There is of course parliamentary scrutiny of EU legislation, but there is no equivalent scrutiny for treaties generally, as the Wakeham commission noted in its report on Lords reform, and this Government have failed to give effect to the Wakeham recommendations. On war powers, it is an anomaly that there is no requirement that parliamentary authority must be sought before we wage war. Clause 1 deals with the executive powers that are to be placed under the authority of Parliament within two years of the coming into force of the Bill. It excludes rights and powers that belong to the Queen personally or to any other member of the Royal Family. Clause 3 enables Parliament to approve treaties before they are ratified and to secure parliamentary approval before members of the Armed Forces are sent into combat. Clause 4 establishes a committee of both Houses to review the circumstances in which executive powers are exercised. It needs to be read with Schedule 1. The time is long overripe to put the Civil Service on a statutory footing. I am particularly pleased that the noble Baroness, Lady Prashar, is in her place to express her views on the matter. She is a very distinguished recent First Civil Service Commissioner. It is now long due that British citizens, like the citizens of other parliamentary democracies, have a politically neutral Civil Service appointed on merit and without political interference or control by partisan special advisers—and I was once a partisan special adviser myself. The ideas reflected in Part 2 on the Civil Service follow the recommendations of the Northcote-Trevelyan report on the organisation of the permanent Civil Service in 1854, of the Cook-Maclennan agreement and the more recent recommendations of the Committee on Standards in Public Life in its ninth report of April 2003. In November 2004 the Government published a draft Civil Service Bill and a related consultation document. However, they were still not convinced of the need for legislation and merely wished,"““to consult on whether legislation is a necessary and desirable step””." Some 15 months later, no progress has been made. The noble Lord, Lord Butler of Brockwell, who as I have said regrets that he cannot be here today, has recently spoken publicly about his disappointment that the Government have not fulfilled their promise to bring in a Civil Service Act. Part 2 creates a framework for the Civil Service structure in England, Wales and Scotland. The Wicks Committee recommended that the Civil Service Commissioners should continue to be responsible for ensuring that the merit principle is properly applied and that the commissioners should be granted powers and facilities to investigate on their own initiative and to report on the operation of the Civil Service recruitment system as it concerns the application of the principle of selection on merit. That is exactly what the Bill does. Under Clause 6, selection to the Civil Service must be by merit on the basis of fair and open competition, except where it is otherwise expressly provided for in the Act. Clauses 7 and 8 set up the Civil Service Commission and outline its duties. Clauses 15 and 16 and Schedule 3 grant powers to the commissioners to enable them to investigate and report. Clause 10 makes it the duty of each Minister of the Crown to uphold the integrity and impartiality of the Civil Service, and to uphold the independence and impartiality of the Civil Service Commission. Clause 13 provides that the Minister for the Civil Service shall issue codes of conduct for civil servants and for special advisers, and to set out the constitutional framework within which they work and the values that they are expected to uphold. The draft code must be published and representations sought from the Civil Service Commission. The draft code must then be laid before both Houses of Parliament. The Cabinet Secretary and the First Civil Service Commissioner have recently launched a consultation on a new Civil Service Code. While the new draft code contains some improvements, it does not alter the constitutional basis of the Civil Service and the code, which remains the exercise of prerogative power. Special advisers are currently appointed by Ministers to the Civil Service under powers conferred by the Civil Service Order in Council 1995, as amended. The number of special advisers did not vary much for 20 years from Harold Wilson’s time as Prime Minister, and at the beginning of 1997 there were 38 in government. But there are now 78 special advisers, no fewer than 24 of whom are assigned to the Prime Minister. Up to three special advisers may exercise executive powers over civil servants. In June 2005 the Government amended the Civil Service Order in Council by stealth, without making any Statement in Parliament or public announcement. Among other changes, special advisers will now be able to provide what is known as ““assistance”” to Ministers, as distinct from providing only advice. Sir Alistair Graham, chair of the Committee on Standards in Public Life, strongly criticised the Government’s secretive approach and observed that:"““The revision lays the Prime Minister open to the suggestion that he is strengthening the mechanisms through which personnel can be recruited into the Civil Service outside the normal merit-based arrangements””." The Bill would not preclude the use of special advisers, but Clause 11 provides that no special adviser may manage, direct or issue instructions to a civil servant in the discharge of that civil servant’s public functions. Under the Bill, each special adviser will be under a duty not only to uphold the integrity and impartiality of the Civil Service but also to act at all times with honesty and integrity. Clause 12 requires an annual report on the appointment, role and responsibilities of special advisers. Part 3 gives effect to the recommendations on nationality in the Public Administration Committee’s draft Civil Service Bill. Clause 17 identifies these restrictions, dating back to the Act of Settlement 1700, which prevent persons born outside the UK being employed in parts of the Civil Service, and directs whether they should be revoked, repealed, omitted or disapplied. Clause 18 sets out various powers to impose new nationality requirements. The Delegated Powers and Regulatory Reform Committee has criticised Clause 18 on the basis that it allows rules to be made by a Minister of the Crown or an officer of the Crown but does not require them to be laid before Parliament. That is a fair criticism. The Bill can be readily amended in Committee to allow any new nationality rules to be subject to the negative resolution procedure. Let me pause for a moment and say that, like the noble and learned Lord, Lord Howe of Aberavon, who was kind enough to write to me about this, I regret that all this needs to be codified. Unfortunately, however, times have changed, and I think that many in the House will agree that codification is now necessary. Part 4 concerns the procedure for making certain public appointments. It is not satisfactory that appointments to key offices such as the Parliamentary Commissioner for Administration and the chair of the new Commission for Equality and Human Rights are made by Ministers without any parliamentary advice or consent. The important office of Commissioner for Public Appointments was established in December 1995 as a direct result of a recommendation in the first report of the Nolan committee. The commissioner is appointed by the Queen under the Public Appointments Order in Council 2002. Clause 21 puts the office of Commissioner for Public Appointments on a statutory footing. Clause 22 provides for a public appointments committee, to be drawn from Members of the House of Commons. Clause 19 provides that both the commissioner and the committee must be consulted before certain public appointments, specified in Clause 20, are made. Part 5 creates a public right of direct access to the Parliamentary Commissioner for Administration. This will provide a direct avenue for members of the public to make complaints about administrative failure and neglect. It is a measure of practical importance, which I promote in the interests of active citizenship and improved accountability of government. The parliamentary commissioner is an officer of the House of Commons and can undertake an investigation only at the request of an MP. The commissioner reports the result to the MP. That is the so-called MP filter, which fetters our Parliamentary Ombudsman and has no equivalent in any other democracy in any other part of the world. Part 5 does not abolish the MP filter but creates a dual mechanism for access to the ombudsman by maintaining the filter and by introducing direct access by members of the public. Direct access to the Parliamentary Ombudsman or equivalent officer by members of the public is allowed in most other democratic countries that have such an institution—in fact, all, to my knowledge. There is direct access to the Health Service Commissioner for England and the Local Government Commissioner. The current Parliamentary Ombudsman, Ann Abraham, has expressed her support for this modest legislative change. I much look forward to the debate and I commend the Bill to the House. Moved, That the Bill be now read a second time.—(Lord Lester of Herne Hill.)