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

My Lords, I shall join in all the remarks that noble Lords have made about the arrival of the Bill in this House. I, too, congratulate the noble Lord, Lord Lester of Herne Hill, on introducing it. It has served two important purposes. First, the Bill, in itself, manifests the noble Lord’s characteristic blend of industry, intellect and—dare I say it—political shrewdness. Secondly, the timing of the Bill is a powerful reminder to the Government that there is unfinished business in relation to Civil Service reform; business which has been long-heralded, but has remained undelivered. One of the responses that I hope the Minister will give is an explanation of why that is so. As noble Lords know, the leader of the Conservative Party, the right honourable David Cameron, made a speech on 6 February that dealt with the principles that underlie the Bill of the noble Lord, Lord Lester. Mr Cameron said:"““I believe the time has come to look at those powers exercised by Ministers under the Royal Prerogative. Giving Parliament a greater role in the exercise of these powers would be an important and tangible way of making government more accountable””." Those remarks were made on the day that a committee, under the chairmanship of the right honourable Kenneth Clarke, was established to take evidence on these matters. That both helps and hinders me in speaking from the Opposition Dispatch Box. It helps me because I can express broad sympathy for the objectives of the Bill; but, on the other hand, I am unable at this stage to endorse every single clause and subsection. The noble Lord, Lord Lester of Herne Hill, was right to concentrate on the control of prerogative powers and not to seek to raise questions about their extent. Quite apart from the merits of that, the better targeted the Bill, the more likely it is to succeed. There is a very important gap in the way that we as a nation can control prerogative powers in the context of what the judges are doing. In recent years, it has often been the case that the judiciary has been the most effective means of containing Ministers’ powers. Indeed, it has done so to such a degree that it has, from time to time, come under quite sharp criticism from government Ministers. However, the role of the judiciary in relation to prerogative powers has been, if anything, in the reverse direction. Although the judiciary has accepted that it has control over the exercise of the Royal prerogative as a matter of principle, on the two fundamental issues with which we have today concerned ourselves—the decision to go to war and the making of treaties—in the 1985 case, Council of Civil Service Unions v the Minister for the Civil Service, the court unequivocally said that it would not seek to examine the exercise of the prerogative in those areas. So if the courts have declared themselves functus officio, Parliament clearly has a particularly heavy responsibility in relation to these powers. I suspect that, unless the Minister has undergone a magic transformation from Bailey to Compton, he will tell your Lordships that there is no problem here. The Government have the power to take decisions under the prerogative at the beginning; and Parliament has the right to question that exercise at a later stage. Indeed, Parliament can, if it wishes—and thinks that the exercise of the prerogative has been so abused—seek to censure the Government for it. It is easy to dismiss that argument outright; but it is worth reflecting on two matters that have been raised in this debate: one by the noble and learned Lord, Lord Archer of Sandwell; the other by my noble and learned friend Lord Mackay of Clashfern. The noble and learned Lord, Lord Archer of Sandwell, rightly reminded your Lordships that something that initially looks like quite a good idea frequently turns out to be quite a bad one. Making an early judgment is often disadvantageous to the person making it. If you couple that with the reflection of the noble and learned Lord, Lord Mackay of Clashfern—that, in undertaking a scrutiny role on the prerogative, Parliament must be aware of the dangers of being implicated in the Government’s decision—what I think the Minister is going to say might not look quite so silly. While Parliament must find ways of exercising control over the prerogative, it must be careful not to be implicated in decisions which it later chooses to repudiate.