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

My Lords, it is traditional for those in this position in the speaking list to start by making the old joke about everything that there is to be said having been said and not everyone having said it. I may get away with not being subject to that charge today, because on the whole my remarks will run contrary to the main spirit of debate. There is one thing on which I am absolutely at one with the House, and that is in congratulating the noble Lord, Lord Lester, on preparing this fine draft legislation and on initiating the debate today. These are issues of the highest importance where the experience of your Lordships’ House has a great deal to offer, and we owe him a great debt of gratitude. What I am going to say first may sound like damning with faint praise, but it is not really meant to be. There is much in the Bill that will do some good, and there is little in the Bill—with one possible exception that I will come to—that will do much harm, so to that extent I support it. The specific proposal about which I have some doubts concerns the Royal prerogative in matters of peace and war. That proposal has been endorsed by both David Cameron and Gordon Brown, so I am perhaps on risky ground in disputing it, but neither of those two gentlemen has yet been Prime Minister. One or the other—perhaps both—one day may be. Their principal duty if they do attain that office will be to maintain the security of the nation. Would that proposal help in that? The secret of preserving peace is that a prospective enemy has no doubt that you are willing and prepared to go to war. I wonder whether there are circumstances in which this provision could cast doubt on that preparedness, although I know that there are provisions for urgent action in the Bill. Perhaps a rogue state threatens us. Perhaps the Government’s tough stance towards it causes parliamentary controversy. Perhaps its rather inexperienced diplomats misread the situation. Perhaps they think that John McDonnell and Jeremy Corbyn speak for England and doubt that the Government would win a parliamentary majority for war. Perhaps that doubt, mistaken though it would be, would cause them to embark on a fatal adventure. I accept that that contingency is pretty remote, but the cost if it happened would be pretty high. That proposal, which has become incredibly fashionable, deserves more consideration, including by Britain’s military and security advisers, before it is passed into law. I say that in passing. I want to devote my remaining remarks to two premises that seem to underlie the case for the Bill, and on which I am not altogether convinced. One is that an important cause of our current political malaise is inadequate parliamentary accountability. The other is that the solution to this lies in new laws and rules. The rules, for instance, in this Bill are based in statutory codes of practice for civil servants and advisers. On parliamentary accountability, it is now pretty well the conventional wisdom that it is in decline. I cannot see it. It is a third of a century since I started working in the Houses of Parliament, when I was political adviser to Anthony Crosland. When I look at the changes since that time, parliamentary accountability has not decreased, rather it has hugely increased. I will give noble Lords three examples. The Whips have nothing like the power they had in 1972 when a vote against the Government was a sackable offence. Parliamentary revolt is now permanently endemic—and I welcome that. On the examination of the Government’s policies, the Select Committee system invented by the noble Lord, Lord St John of Fawsley, has been expanded hugely. The committees are much better services, the members work harder, they have more research behind them, the chairmen are respected and rewarded and they kowtow to government less and less. Meanwhile, your Lordships’ House, which, shortly before I started work in this place, was virtually moribund, has become—not always to my taste—more assertive. Why is this evident growth in parliamentary accountability so frequently overlooked? I think the answer is that it has gone pari passu with another much less desirable development; namely, the overweening power of the media, a matter again highlighted this week by the witch hunt against the culture secretary. Parliament is holding Ministers to account, but this gets little attention when they are suffering a far worse ordeal by the media. I fear that the effect has been one that we have rightly deplored in this debate—namely, government spends too much time on spin, which deals with the media, rather than on substance, which deals with parliamentary accountability. But I am more concerned that we do something about the media and the spin so that the parliamentary scrutiny, which has developed for the better, shines out as the beacon at the heart of making the executive accountable. My second doubt concerns the place of rules and regulation in enforcing standards in public life. Again this week that has been highlighted by the Mills/Jowell affair. Looking at it, there seems to be something of a pattern. Rules are introduced—this Bill, that code and a scrutiny committee. Yet, despite that, when a real live problem arises, the rules often do not seem to cover the matter. You would think that that would cast some doubt on whether rules are a good way of dealing with this stuff. But it does not. It creates a demand for new rules. The Nolan rules are no longer good enough for public appointments, so we need some more. Ministerial codes do not deal with Minister’s spouses. If we have them for Minister’s children we will need them for their ex wives and second cousins twice removed and so on. In each case, this extension is argued for by the press and by eminent bodies like the Graham committee on standards in public life on the ground that it is essential to public confidence. If rules were the answer to restoring public confidence, the public would never have been more confident in Parliament than they are now. The accumulation of rules over the past couple of decades has been great. It has not done anything for public confidence. The public seems to think that if politics need all these rules, it must be a dirty business, which in my considered view in this country it is not. I apply that with a special force to the constant attempt to design new and stricter rules to special advisers, of which group the noble Lords, Lord Lester and Lord McNally, are distinguished former members and I was rather less distinguish. I still feel that we are trying to shove special advisers into boxes which are appropriate for civil servants. I know that the noble Lord, Lord Lester, has tried to avoid that by his references to impartiality not being the necessary quality. When I read the special advisers’ code, I wonder whether any special adviser who took it literally would be able to do the job his Minister required of him. We had far fewer such rules when we were special advisers, but I think we had a better idea than some of the boys today of what behaviour was acceptable. My concluding and perhaps central point is that, in general, rules do not determine outcomes, although they can help in doing so. Rules are but a part of something wider, and that something is culture. What is going wrong, in so far as anything is going wrong with our system, is down to a laxer culture largely generated by the culture of the media, which no longer seem to relate to the realities but solely to witch hunting. That is what is causing our problems. There is only one kind of regulation that ultimately works; that is, self-regulation. Rules can play only a relatively restricted part in creating that self-regulation. The culture of government is the most important thing and needs the most urgent attention. The Bill of the noble Lord, Lord Lester, welcome though most of it is, is not a substitute for appropriate culture changes, nor is it a panacea. I am absolutely sure that the noble Lord, Lord Lester, knowing him as I do, would not claim otherwise.