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

My Lords, I am just going to deal with that. It seems that the situation for military decision-making on the one hand, and of treaties on the other, is quite distinct. The noble Lord, Lord Lester of Herne Hill, was wise to include Clause 3(3)(b) in his draft Bill, because there will clearly be circumstances where the Government are receiving information which it would be unwise to put into the public realm at that time, yet which will compel them to take decisions quickly and authoritatively before Parliament can be informed of the basis upon which those decisions are taken. My noble and learned friend Lord Mayhew of Twysden made that point with particular authority; but a number of your Lordships have also made it. The position of treaties is quite different. I say with great respect to the noble Lord, Lord Lester of Herne Hill, that, here, I do not think that his Bill goes far enough. The crucial moment for binding the Government internationally is the signing. Once the treaty is signed, there is little a Government can do to change it, unless they repudiate their international responsibilities. It must, therefore, follow that, if Parliament is going to have a role in shaping the outcome of a treaty negotiation, that must—to put it rather crudely—kick in before the signature stage. Scrutiny of treaties is different from scrutiny of acts over which the Government have complete control. The Government will be negotiating as one of a number. They will never be able to guarantee the outcome that Parliament wants. That is understood; and Parliament requires much greater flexibility in scrutinising treaties than it would in scrutinising ordinary legislation. Nevertheless—and I say this entirely personally as I in no way wish to bind the Opposition to this proposal—I would like to see, at the initial stages of negotiation, the Government coming to Parliament to lay before the House their negotiating objectives; not in detail, but in broad terms. I would like to see, in the course of negotiations, the Government coming back to a committee from time to time, to let it know how those negotiations are going on. Some of the sessions of that committee will inevitably have to be in camera; but the process will develop a degree of confidence between the Government and Parliament which should, by the time the Government come to sign the treaty, mean that they can do so confident that it will have the House’s endorsement. I accept that, if one has an over-elaborate and intrusive role for Parliament at these stages, I may run into the difficulties mentioned by my noble and learned friend Lord Mackay of Clashfern. Nevertheless, at the moment, we know absolutely nothing about treaties until it is too late to do anything about them. I think particularly of the extradition treaty between the United States and ourselves; or, more broadly, the European arrest warrant. The House was presented with a fait accompli on matters which were absolutely fundamental to the human rights of individuals. Had we had the opportunity to deal with these matters in the course of the negotiations, I am convinced that there would have been a completely different result. The noble and learned Lord, Lord Archer of Sandwell, prompted me to consider this matter. I have now done so. If he disagrees with me, I nevertheless hope that he agrees that I have given it come consideration. The issues which have, on balance, dominated the debate today are those of the civil service. I endorse the idea of a Civil Service Bill, and therefore endorse what the noble Lord, Lord Lester of Herne Hill, has done, generally, in his Bill. We were all, as we always are, impressed by the speech of the noble Lord, Lord Sheldon. I find it hard to disagree with anything that he said. Perhaps on one matter raised by the noble Lord, Lord Brittan of Spennithorne, I am inclined to support the idea of a fixed upper limit for special advisers, rather than some other solution. Apart from that, I think everything that the noble Lords, Lord Sheldon and Lord Lester of Herne Hill, said about the kind of Civil Service we want in the future—the relationship of permanent civil servants with special advisers and the restraints which should be placed on special advisers—are extremely welcome. One matter which was not mentioned this morning was the relationship between the Civil Service and consultants. We all know that there has been an explosion of expenditure on consultants in the past 18 months to two years. There have been various theories advanced as to why this has been so, one being that, to the extent that we seek to contain the growing numbers of civil servants, there will be a strong temptation, when work has to be done, to farm it out. However, the scale of the increase of expenditure and the rates that are paid to those consultants is a matter that needs serious consideration and, perhaps, should be included in the Civil Service Bill as well. After all, a consultant does not operate under the same ethical system as a civil servant; yet his views will be considered by Ministers. There ought to be some measure of control in the manner in which this process operates. That part of the debate which related to the overall culture of the Civil Service was extremely important. The noble Lord, Lord Armstrong, referred to trust, which, in my submission, blends into culture. In a culture of trust, you do not need all these infernal rules that we now have to apply in relation to almost everything that we do. I, like the noble Lord, Lord Maclennan, thought that the noble Lord, Lord Lipsey, made an extremely thoughtful speech. I was not entirely convinced by his conclusions about the uselessness of rules in the light of the change of culture. However, the difficulty in the relationship between rules and culture is very important. As culture changes and rules are regarded as a nuisance, there is a temptation to produce more rules to deal with the growing difference between culture and rules. We will therefore have an endless series of rules and an endless series of tireless efforts to get around them. An important component to the solution of that problem has not yet been mentioned. It is one that is entirely, in a sense, in the hands of your Lordships’ House. We need to consider in your Lordships’ House—it would be true of another place, although it is not for me to suggest it—how to improve the weapons that our parliamentary committees have at their command to get at what is really going on behind the curtain. I would like to see the power to take evidence under oath in order to get at a particularly factual situation which is, as yet, obscure, and the power to subpoena both documents and Ministers. These matters should be considered soon by your Lordships’ House. I have not quite devised or divined how to achieve that as yet. But, parallel with the progress of the Bill put forward by the noble Lord, Lord Lester of Herne Hill, I would like to see serious thought given in your Lordships’ House to how we can make our parliamentary committees really get at what is going on behind the scenes in any particular area which we think needs investigating. As so many of your Lordships have said, this has been a debate of remarkable high quality—all the more enjoyable by the many shafts of wit.