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

My Lords, first, I crave the indulgence of the House for the fact that I will not be able to stay to the end of the debate. I have informed both the noble Lord, Lord Lester, and the usual channels, who have kindly said that they do not object. I warmly welcome the Bill and almost all the key provisions in it. I share with almost everyone who has spoken the feeling that we owe an immense gratitude to the noble Lord, Lord Lester, for taking so much trouble and bringing the Bill to the House. It is an important Bill although it is rightly and inevitably limited in scope. By that I mean that it is not in any sense an inevitable step towards a written constitution. Those who have hesitations about a written constitution need not in my view have hesitations about this Bill. I do not think that the Conservatives, whether with a large or a small ““C””, should be troubled by the fact that it controls the exercise of the Royal prerogative. It does not curb powers genuinely exercisable by the Crown, but does control the exercise of powers which are in practice exercised by the Government in the name of the Crown. I think it is important to be clear that that does not affect powers that need to be exercisable by the Crown itself, which in effect remain the power to dissolve Parliament and the power to appoint a Prime Minister. The exercise of those powers by the Crown is, of course, itself circumscribed by convention. But a residual power genuinely exercisable not on the advice of a Prime Minister is very important to deal with a situation where the result of an election or other political changes makes it unclear who the next Prime Minister should be or a situation where the exercise by a Prime Minister of the right of dissolution may be abused; for example, if he has not really effectively won an election and wants immediately to dissolve Parliament to have another go. It is important that the right to exercise the prerogative should be retained. The most important but the least spectacular feature of the Bill is to put the Civil Service on a proper statutory basis. It has long been called for, it has been long resisted, and it is definitely overdue. The broad framework set out in the Bill seems to me to be substantial and persuasive. The only particular point that I would single out for comment is the one relating to special advisers, where I not only agreed with but warmed to the points made with great force by the noble Lord, Lord Sheldon, just recently. Clause 11(3) is very welcome in making clear that special advisers may not,"““manage, direct or issue instructions to a civil servant””." That is an area where there has rightly been much and great suspicion of abuse in recent years. I would however go further than the Bill currently provides. I believe that it is important to limit the total number of special advisers, perhaps to do so in a flexible way, but to have some parliamentary control in a legislative form on that issue as well. As has been said and shown, there are now very many more special advisers than there were and there are far too many. I very much agree with the noble Lord, Lord Sheldon, that special advisers can be useful and probably even essential in today’s world if they perform a unique political role and above all work with the grain of the system. My experience as a Minister was that they had to do that because they were only a handful and unless they secured the confidence of the civil servants they could not actually do the job for the Minister that they wanted. If they become too numerous, as they have become, instead of genuinely performing that role they become an overmighty elite corps who regard themselves as the guardians of political correctness, and that inevitably threatens the proper role of an independent Civil Service. Another extremely important part of the Bill is the provision that treaties have to be given parliamentary approval, in the case of the most important ones by the affirmative procedure before ratification. The web of international commitments that we enter into is in today’s world constantly getting more extensive and more complex. I would not commend the procedure operating in Denmark whereby the government’s handling of every step in negotiations on European legislation is controlled by parliament. But in a democratic society the right to give the ultimate say should be exercised by Parliament. It is not acceptable for a Government to be able to say, as has been known to happen, ““We’ve already entered into an internationally binding commitment and you must therefore now approve it by giving legislative effect to what we have committed ourselves to and you must do whatever is necessary to make it possible for that to happen””. That is unacceptable and savours of parliamentary blackmail. Still more important than the provision on the treaty right is the provision requiring parliamentary approval for direct participation in any war, international armed conflict or international peacekeeping activity. It is more important, but again in my view is fully justified. I understand the difficulty of governments having to disclose all the information upon which they are making decisions but all I can say is that the experience of recent conflicts, and most notably of the Iraq conflict, leads me to the view that the national interest is far more damaged by inadequate disclosure than by excessive disclosure. Indeed, I cannot think of a case where excessive disclosure has ever led to that damage. In practice, of course, a government could not survive if Parliament did not support military action that had already been taken, but it is unreal and savours of blackmail of Parliament for a government to demand support only when British forces are already either engaged or massively committed. In the case of real emergency the Bill permits the Government to take action without parliamentary approval and has to justify it subsequently. I would go further and require not just a statement of reasons but actual subsequent parliamentary approval even if by then the scales were so loaded in favour of that being given for the reason that I have already mentioned. One of the reasons I say that is because in practice the curious fact is that today’s wars seem to be increasingly ““voluntary”” in the sense that they are not a response to a sudden attack but a conscious decision to take military action in a particular situation. In that situation, parliamentary approval should be a real check. What may be more difficult is the precise definition of ““war”” or ““international armed conflict””. I suspect that that may need further discussion in Committee. Finally, I welcome the proposals to make certain public appointments subject to parliamentary approval by the Public Appointments Committee. The list is actually rather a modest one although I appreciate that the Bill makes provision for its possible extension. I hope that that will be exercised or that there will be amendments even at this stage, including other appointments which are not covered in the present draft of the Bill. What I do not quite understand is why membership of the Public Appointments Committee provided for in the Bill is confined to Members of the House of Commons while membership of the Executive Powers Review Committee is to be drawn from both Houses of Parliament. It seems to me that it would not be excessively ambitious for this House to be included in the pool from which members of the Public Appointments Committee could be drawn. I very much hope that there will be cross-party support for the highly desirable reforms put forward in the Bill. I welcome the fact that the new leader of the Conservative Party has nodded very strongly in that direction. I believe that the Bill, when enacted, will significantly improve the governance of the United Kingdom and add a very welcome enhanced degree of parliamentary accountability which is appropriate to today.