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

My Lords, I too congratulate the noble Lord on introducing this Bill and on its wide scope. It may be some encouragement to him, with regard to the Government’s attitude, that the Queen’s consent seems to have been signified at a comparatively early stage of the proceedings in this Bill. Since this Bill has emanated from the Front Bench of the Liberal Democrat Party, it may be appropriate to offer my congratulations to Sir Menzies Campbell on his election as leader of that party. It is the second occasion in recent times that a United Kingdom party has chosen its leader from among the members of the Faculty of Advocates. I am very sorry that the first of them, John Smith, was cut off prematurely from the role to which he had been elected. I wish Sir Menzies every success in the challenging role of leading the Liberal Democrat Party. Some parts of this Bill are clearly and urgently required. I speak particularly of the part relating to the position of special advisers. I was honoured to be some 14 years in government and I had no experience whatever of special advisers. The noble Lord, Lord Lester of Herne Hill, was one some little time back and therefore speaks with a certain experience. However, it is time that this branch of executive power is brought under constitutional restraint. The way of doing that which is proposed in this Bill strikes me as suitable. I am glad that the noble Lord, Lord Sheldon, is going to speak today. I associate myself in advance with what he says because I have heard him speak on this subject previously. I have every reason to think that his views and mine are close. So far as public appointments are concerned, I am glad that the noble Baroness, Lady Prashar, with her unique experience and talent in this area, is going to speak after me. One recent development in relation to some areas of public appointment which troubles me is a multiplication of officials whose job it is to see that others are doing their job properly. For example, as your Lordships know, a judicial appointment commission has recently been set up to appoint judges, but another commission exists above that to see that the first commission does its job properly. The Minister is in some place above that. This kind of development is apt to dilute the direct responsibility of the Minister to Parliament. If I share my responsibility, I am able to share the blame if something goes wrong. There is a lot to be said for individual, personal responsibility in government. Where something goes wrong in the service for which a Minister is responsible, that Minister is directly responsible to Parliament. That doctrine is in danger of being diluted by a multiplication of officers whose job it is to supervise others under ministerial responsibility. I shall spend the rest of the time available to me on dealing with the relationship that is specified in the first part of the Bill, ““Parliamentary Authority for Executive Powers””. My understanding is that one of the fundamental responsibilities of Parliament is to bring the executive to account for all their actions, including those which are under executive powers. Therefore, there may be some question about whether Clause 3 is appropriate, because it states in advance:"““In respect of any particular exercise of executive powers, the general rule is that appropriate parliamentary authority shall be regarded as provided by virtue of this subsection””." In other words, those who are holding the executive to account are giving their authority in advance to what the executive are going to do. It is a bit difficult to hold somebody to account if you are going to approve in advance what he is going to do, so I doubt the wisdom of that particular way of putting the matter. I see the desirability from some points of view in executive control of certain prerogative acts; the example that has been highlighted is that of going to war. I had in mind some of the difficulties that the noble and learned Lord, Lord Archer of Sandwell, referred to. If you share responsibility with Parliament for going to war, when something goes wrong there is a degree of feeling that you have been supported in that decision by Parliament, so Parliament shares some responsibility for the outcome. There is, of course, a certain degree of restriction or restraint on prerogative powers in relation to going to war by the budgetary control of the Ministry of Defence. Parliament has the ultimate authority over the budget of the Ministry of Defence, which will no doubt be affected by the operation of going to war. The difficulty to which the noble and learned Lord, Lord Archer of Sandwell, referred, which I shall put in my own words, is the difficulty of laying before Parliament, at the time when the decision is required on whether to go to war, the information available to the executive on that aspect of the matter. The Foreign Office and security services have been referred to but, in view of my own interest in the matter, I refer also to the position of the law officers. The opinion of the noble and learned Lord the Attorney-General was taken in relation to the Iraq war and a parliamentary Answer was given; then there was a great degree of concern that there was some other opinion that the noble and learned Lord the Attorney-General had given. Your Lordships will remember that there was a good deal of discussion about that in the media. I asked the noble and learned Lord about the matter in this House, and I said that I thought that if there was any such thing it would be good from his point of view if it was released, and he said—in a very effective put-down, so far as I was concerned—that he thought more of the importance of the state’s interest than of his own personal situation. I accept that, of course; the only thing was that in the heat of a general election, it appears that the importance to the nation of keeping it secret suddenly became less important, and it was released by Downing Street in the middle of the general election campaign. If Parliament is to be involved with responsibility for going to war, it must have full disclosure of that kind of information. It is questionable to what extent that will be practical in the interests of this particular move.