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

My Lords, one of the advantages of yielding to a request from a colleague to give up one’s place in the list of speakers is that you find, particularly if it is the noble Lord, Lord Brittan, that he has said everything that you want to say and you can get away, therefore, with being a lot more brief, which is always welcome in this House. I cannot, however, possibly neglect to say that I have admired enormously, as have all the speakers who have addressed your Lordships’ House today, the assiduity in the drafting and the thoroughness and the care that has distinguished the work of the noble Lord, Lord Lester, in bringing forward this Bill. It is long overdue, for reasons I will touch on. It is enormously valuable because it has, as my noble and learned friend Lord Mackay of Clashfern said, opened up for us a means of discussing important issues. The Bill resembles, if you like, a multi-barrelled rocket launcher. Each of its missiles is separately targeted, but each is intended to detonate within the area of the overall objective. That overall objective is the extension—I was going to say the preservation—of parliamentary control over the executive. Within the time available, I want to deal only with its provisions for the prerogative and then with those for the Civil Service and those for the special advisers—that is, Parts 1 and 2. The Bill is surely implementing a reform whose time has come when it seeks to bring onto a statutory basis those residual prerogative powers that, by a process which we all know, over the centuries have become delegated to Ministers and exercisable by them. The force of the argument for that reform can be put in this way. The stability of our country depends on our consent for being governed. Of course, governments cannot please all of us all the time—governments cannot even please all of us some of the time—but we put up with that, and are used to it, provided that one condition and one only is satisfied. That is that the Executive of the day is dependent on retaining the confidence of a free Parliament, a Parliament in which our dissent can be fairly, freely—even, on occasion, decisively—heard. That is the key condition for our consent to being governed and it is entirely absent in the far from negligible powers that I am discussing. They are conveniently listed in the Explanatory Notes at paragraph 12. They are far from negligible, as has been mentioned in many speeches today. The power that has attracted most attention in this debate has been the power to commit British troops to conflict situations. The importance of that issue has been brought before us many times recently—in particular, by the commitment to participate in the Iraq war. It is not necessary to go into the merits or demerits of the lawfulness of that action on the part of the Executive. I happen to think that, on balance, the Attorney-General’s argument was right; although the alternative arguments were entirely respectably advanced. I said that at the time and I hold to that view, but it is not necessary for us to determine that to be able to see that immense interest, to put it mildly, has been taken in the country in the fact that troops can be committed to conflict without prior parliamentary authority. I do not forget that, in the case of the Iraq war, the Government accorded to the House of Commons a substantive Motion and secured support for it. I also think that it is probable that, in future, it will be politically impossible for any major deployment of that character to take place without prior authority accorded by Parliament. But that does not decide the issue. It is not enough to say, ““Oh well, it will always happen anyway””. In the interests of the military, in particular, it is now necessary for there to be a statutory requirement of the character proposed in the Bill. I am of course concerned, as anyone must be, by the point put forward by my noble and learned friend Lord Mackay about the difficulty of bringing the whole case before Parliament on grounds of intelligence, and so forth, but I am rather taken by the point made by my noble friend Lord Brittan—that the dangers of holding back information appear to be greater than those of making it public.  However, we must take that point seriously and in Clause 3(3)(b), the Bill provides for an emergency where the Prime Minister certifies that action has had to be taken in advance. That needs to be carefully examined and, I think, goes some of the way towards providing the solution to the problem posed by my noble and learned friend. I turn to how the Bill deals with the Civil Service. So much has been said about that in a very approving tone that it is not necessary for me to take much time about it, save to express my warm welcome. It is absurd that the structure, organisation and management of the Civil Service, whose characteristics are so important to the maintenance of a free, democratic government and society and the rule of law, can be changed under the prerogative, with all the limitations on parliamentary scrutiny and judicial supervision that that carries with it today. I wonder why the Government have not brought forward that provision. The noble Lord, Lord McNally, took us through the history. I hope that the noble Lord, Lord Bassam, from his impregnable decision at the crease, will now tell us whether the Government will give the provision a fair wind and, if not, why not. After all, a statutory footing for the Civil Service has been recommended since Northcote-Trevelyan in 1853, so there has been plenty of time to think about it. The Government say that they have thought about it. Two years or more ago, the Deputy Prime Minister said that a Bill would be enacted. What has happened to it? Why was there nothing about that in the Queen’s Speech last May? Lastly, as for special advisers, that burgeoning breed needs, with the greatest respect to the noble Lord, Lord Lipsey, whose speech I listened to with my usual admiration, to be brought under statutory control. The worst example of the dangers attending the current system is when the Prime Minister gave power to special advisers to give instructions to civil servants telling them what to do and how to do it. I am very glad to see a specific provision in the Bill making that beyond the pale. The Bill is long overdue. I give it the warmest of welcomes and, and as another noble Lord just said, I look forward to a very rich Committee.