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

My Lords, I am very happy to have been able to hear from the noble Lord who has just spoken, not least because of my recollection of my first encounter with him in 1974, when he conveyed to me the extraordinarily welcome news that I was to be appointed to the then government in the most junior capacity imaginable. I have followed his utterances with enormous interest ever since. In speaking as the noble Lord did of the situation that has given rise to this Bill and the lack of trust, his words brought back to me a conversation that I had with Robin Cook, 48 hours before he died, walking around my garden on the north coast of Scotland. Far from taking pride in the measures of reform which he had been so instrumental in promoting—he not only created a policy programme for the Labour Party before it entered government but, as Leader of the House of Commons, he sought to place at the forefront of the government’s programme changes that would make the House of Commons more effective in holding the Executive to account—he was still concerned for the future and feared that the lack of trust in government was growing. I wholly accept what the noble Lord, Lord Lipsey, said in his extremely interesting and thoughtful speech about the press that more needs to be done by cross-party agreement. That has been characteristic of today’s debate, which has been of an unusually high order, although this House, when it stands back, is often capable of delivering such sound sense as we have heard on both sides. I, too, begin by expressing the enormous debt which those of us who are privileged to contribute to this debate feel we owe my noble friend Lord Lester of Herne Hill for the extraordinary work that he has done, not only in introducing the Bill in such a remarkably finished condition and his efforts to explain its possible operation, but for the long years of patient incremental work advocating reforms of the constitution that might be acceptable at the time, pushing out the debate ever further forward and giving those who have concerns the ammunition and the routes ahead to develop the process of reform. It has been a remarkable life’s work. My party and, I believe, all parties are immensely indebted to my noble friend. I shall allude quickly to the one measure in the Bill that has not been touched on; the reference to enabling the ombudsman to take up matters by direct approach in parallel with the provision that allows Members of Parliament to make approaches. It has been discussed in this House before. It is a sensible proposal and, as one who introduced a Private Member’s Bill to enable the local government ombudsman to be set up with just such powers, I hope that the Government will not regard it as seriously controversial and that the Minister will indicate that it will be acceptable in principle. The debate has focused mostly on what might be regarded as current business, although it is curiously difficult to embrace this business—that is, the Government’s intention to introduce a measure to place on a statutory footing the independence and promotion on merit of the Civil Service that have characterised it in the past. I know that my noble friend would have preferred not to have had to introduce that measure. It does seem pre-eminently to be a matter for the Government, and one on which they have been advised by the noble Baroness, Lady Prashar, in her role as the First Civil Service Commissioner, and by Sir Alistair Graham, chairman of the Committee on Standards in Public Life, and his predecessors. It has been supported, I believe, on all sides. It has had the powerful support of the Civil Service unions and many senior figures in the Civil Service. It seems to be almost beyond controversy, and it becomes very hard to understand why there is such a blockage. I am bound to say that those who have pointed the finger at No. 10 seem to be doing nothing less than finding where the culprit truly resides. I wholly agree with my distinguished leader, my noble friend Lord McNally, that the Prime Minister apparently regards this as something that will curtail his freedom to act in an almost extra-constitutional fashion to fit his discretionary powers to the needs of the moment in a way that damages the public perception of governance. I was impressed by the passion which the noble Lord, Lord Sheldon, brought to that consideration, speaking as he does from long experience in government and, in his role as chairman of the Public Accounts Committee, of scrutiny of government, with a real understanding of the real issues. At this stage in the debate, I can add only an appeal to the noble Lord, Lord Bassam. If he not able to do more than play a dead bat today, to take back to his colleagues the honest sense of this House, which has been expressed by all speakers, that this matter will not brook further delay. Eight years is enough time; let it suffice. The time has come for a decision. Encouragement is to be found in recent speeches by Mr David Cameron and Mr Gordon Brown about the need for constitutional reform and, in particular, in what they have had to say about Crown prerogative. The desire to establish that the powers exercised in the name of the Crown by the Executive are in fact drawn from a popular mandate expressed by representative parliamentarians is surely in keeping with the mood of the times. It is not easy to rebuild popular trust in our constitutional processes if it is to be accepted, on a continuing basis, that the great powers of war and peace are exercised by heads of government—and it increasingly appears that that is so—by virtue of an historical trickle-down from the Crown. If we are trying to speak to the public, and to young people, about how our constitution works, and if governance is based in democracy, then we have to address that. It is not simply pettifogging attachment to rules or the belief that rules and regulations are salvation. It is about creating the very ethos that the noble Lord, Lord Lipsey, so strongly advocated. We cannot do that without the full understanding of the press, but the defence—the mere explanation—of the historical basis for the exercise of those powers is not compelling in the world in which we live. It would enable the parliamentary part of our governance to act more effectively in scrutiny and oversight if we set these things out in statute. My noble friend Lord Lester has attempted to explain in some detail how he would deal with the obvious difficulties, such as that eloquently pointed out by the noble and learned Lord, Lord Mackay of Clashfern that governments might not be able to provide Parliament with all the information. There is some merit in the approach that my noble friend has taken in attempting to deal with issues of that sort, though I was greatly attracted by a simple legislative proposal advanced about a year ago by Adam Tomkins, the John Millar Professor of Public Law at the University of Glasgow. Referring to the parliamentary prerogative, he suggested that the simplest solution—which would certainly concentrate people’s minds—would be for Parliament to,"““pass a Prerogative (Abolition) Act. The Act should contain two sections. Section 1 should provide that ‘all prerogative powers shall be abolished’ and section 2 should provide (with a nice touch of irony) that ‘section 1 shall come into force one year after this Act receives the royal assent’. That would give the government one year in which to introduce legislation that, when passed, would confer on the government such powers as Parliament considers it needs in place of its former prerogative powers””." That would certainly pass the buck from us here. However, I think that the approach of my noble friend Lord Lester is the one that will commend itself. Indeed, it has done so in this debate. I shall conclude by addressing an issue that goes beyond the immediate ambit of the Bill, which is how we take these matters forward if we find that we cannot make progress here. I hope that the Bill will make progress into later stages of discussion so that the arguments are better teased out, heard and reported. None the less, we have to accept that these matters require popular involvement, cross party discussion and the full interplay of Parliament in that process. I commend for the attention of the House the process that was followed in Scotland in considering devolution for the long years when it was not being discussed and during which forward movement was impossible. I refer to the establishment of a constitutional convention to enable discussions to be continued. It would involve parties of all political persuasion and some interests, such as the Church, the trade unions, industry, and other bodies that are particularly interested in this, including the sort of people who were so helpful in the POWER inquiry. It would be a way in which we could systematically seek to advance these powerful and much-needed reforms. I conclude by commending such reforms to this House. I hope that the Bill will progress.