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

My Lords, I am very pleased to respond to the noble Lord, Lord Lester, in today’s Second Reading presentation of his Bill. Like all Members of your Lordships’ House, I, too, am a great admirer of the noble Lord, not least because of his persistence, but also because of his ingenuity in bringing forth a whole range of measures, many of which find their way on to the statute book over time. There is no doubt that it has been a very illuminating and broad-ranging debate, which has had a rich cast list adding different perspectives and thoughts to it. I am very grateful to the noble Lord, Lord McNally, as ever, for drawing the attention of your Lordships’ House to the fact that I am viewed in some quarters as being the Bailey of the Government’s Front Bench. It is a flattering description—Bailey was a splendid cricketer. He was an all-rounder, and an Essex man like my good self. One thing that I warn the noble Lord, Lord McNally, is that although I might not be a Bailey, several hundred batsmen have found to their cost that I have got a nifty swing to my bowling. The main focus of the debate has been on two main areas—the Royal prerogative and the Civil Service, but, more particularly, the role and position of special advisers. I will come, of course, to those issues. I must give one further congratulation to the noble Lord, Lord Lester, at this early stage: he has certainly brought the Bill before us at a time when these issues are very much at the forefront of debate in our country. It is well timed this particular week when the power to the people report has been so well received and broadly commented on for its contribution to that debate. In accordance with the conventions of the House, the Government will not seek to oppose this Bill being given a Second Reading, but we will want to make clear our position on all the major issues. Your Lordships can expect that we will not necessarily be in entire agreement with the conclusions that the Bill draws and the conclusions that the noble Lord, Lord Lester, will draw from that. It would be right to turn, first, to one of those areas of the Bill which brought forward very thought-provoking and interesting comments; that is, prerogative powers. I was grateful for the careful way in which the noble Lord, Lord Lester, set out his views on that, which helps us to focus carefully on complex matters. In devolution terms, we recognise that the Bill deals predominantly with reserved matters. However, the Government believe that those provisions dealing with prerogative powers touch on devolved matters and would trigger the Sewel convention. They would require the consent of the Scottish Parliament. Against an absolute standard of democracy, the prerogative might seem, as the noble Lord, Lord Lester, described it, something of an anachronism. However, in the Government’s view, it continues to serve us well. It allows us to balance flexibility and Parliament’s right to scrutiny. The prerogative, as with anything else, can be limited or varied by statute. It is not immune to parliamentary sovereignty. Numerous powers once exercised under the prerogative are now subject to statutory regimes either through particular amending statutes or in Acts of Parliament with more general application. Therefore, the question we must ask ourselves is whether recasting elements of the prerogative within a statutory regime improves the quality of our democracy and constitutional arrangements. It is also worth recalling that whether or not Ministers can exercise their prerogative powers without the consent of Parliament, they are in fact accountable to Parliament and the public for their decisions and actions, regardless of whether those decisions are taken under the prerogative or under statutory authority. Powers exercised under the prerogative are not a means of avoiding parliamentary scrutiny and accountability. Furthermore, and notwithstanding the development of judicial review, the courts are reluctant to interfere with the exercise of the prerogative where this relates to high policy. The courts have distinguished between acts involving matters of high policy at the top end of the scale of executive functions under the prerogative and matters of administrative decision where we can expect more judicial scrutiny. The former category would include the power to deploy the Armed Forces. I would argue that such a decision is ultimately a matter for politicians, not the courts. However, putting this within a statutory framework could mean that the courts would interpret decisions taken under the relevant provisions. In the Government’s view, the prerogative is thus a well established part of our constitutional settlement. As the Commons Public Administration Select Committee acknowledged, it offers much-needed flexibility to govern and gives Ministers executive powers enabling them to react quickly in possibly complex and dangerous circumstances, a point noted in the debate in particular by the noble Lord, Lord Armstrong. The Government therefore continue to believe, as set out in their response to the Public Administration Select Committee’s report in July 2004, that it is often possible to make out a case for a transfer of prerogative powers to a statutory framework, but that this is best done on a case-by-case basis. Indeed, I was rather drawn to the acute observation of the noble Lord, Lord Kingsland, that the way in which the prerogative is exercised might, on reflection, not look so silly. Many comments made in the debate focused on the exercise of the prerogative and war powers. Noble Lords will be aware that the use of the prerogative by government to deploy the United Kingdom’s Armed Forces is currently the subject of an inquiry by the Constitution Committee. The Government have already reiterated their views in a memorandum to the committee and Ministers will shortly be appearing before it in order to discuss the Government’s position in more detail. As the Government argued in their memorandum to the committee, they remain of the view that while a government could seek to deploy the Armed Forces on operations under prerogative powers without the support of Parliament, such an eventuality is theoretical rather than real. As the noble and learned Lord, Lord Mayhew of Twysden, described so accurately, a government draw their authority in essence from their ability to continue to command not just a majority, but authority in the House of Commons, so they must maintain the confidence of the House and the electorate if they wish to continue to hold office. They must therefore take account of and be sensitive to the views of Parliament at all times if they are to continue to hold that confidence. Moreover, the Government have given repeated assurances that Parliament will be given an opportunity to debate and scrutinise decisions about the deployment of British forces in armed conflicts overseas. In that context, perhaps it is worth quoting the comments of my right honourable friend the Prime Minister to the Liaison Committee in January 2003. It stated:"““I cannot think of any circumstances in which a Government can go to war without the support of Parliament, so I do not think it is real. I think you can get into a great constitutional argument about this, but the reality is that Governments are in the end accountable to Parliament, and they are accountable for any war that they engage in, as they are for anything else””." In these circumstances, a formal requirement to consult Parliament, especially one in legislation, is unnecessary, while a requirement to hold a debate in advance of deployment could prejudice the Government’s ability to act swiftly to defend national security. It could damage operational effectiveness by providing information about the possible disposition of the Armed Forces to the forces they may find themselves facing, and could lead to difficulties in defining what constituted a deployment requiring the Government to consult Parliament. My noble and learned friend Lord Archer of Sandwell drew this point to the attention of the House and described some tragic circumstances where lack of flexibility might inhibit important deployments. Beyond that, as I said in setting out the Government’s position in relation to the prerogative in general, putting in place a statutory framework risks involving the judiciary in hearing cases on the legality of deployments. So the Government are firmly of the view that deployments of the Armed Forces are decisions for Ministers. Ministers will then be held to account to Parliament and the public for their decisions and actions. The noble Lord, Lord Kingsland, focused much of his interest in this debate on the issue of treaties, which I believe to be an important element. As the noble Lord observed, the making and ratification of treaties is one of the principal uses of prerogative powers in relation to foreign affairs. The Bill contains a number of provisions that would fundamentally affect the exercise of authority in the conclusion of treaties by the United Kingdom and is therefore a matter of some significance. Noble Lords will be aware that we have been consistent in saying that we remain open to considering ways of enhancing the scrutiny of treaties by Parliament. That remains the case today, but some of the key provisions of the Bill go well beyond that. The proposal is to require either a resolution to be passed in both Houses or a report to be made by a Select Committee to Parliament before ratification can be effected for every treaty that is subject to such ratification. The number of treaties involved is substantial: more than 300 have passed through the current Ponsonby rule procedure since Explanatory Memoranda were introduced at the suggestion of the noble Lord, Lord Lester, in 1997. We have already taken a number of steps to improve the efficient and effective scrutiny of treaties by Parliament. I argue that point because it is rather contrary to what the noble Lord, Lord Lester, asserted. For instance, we have widened the scope of the Ponsonby rule to allow more treaties to fall within its remit and to ensure that Select Committees in another place have the opportunity to consider each treaty laid before Parliament under that procedure. We have also given an undertaking that on all treaties involving major political, military or diplomatic issues, we will normally provide the opportunity for a debate if the Select Committee and the Liaison Committee so request. Both the text of each treaty and its accompanying Explanatory Memoranda, which bring out the treaty’s salient facts, are already made directly available to all Members and, more than that, are published openly on the Internet when they are laid. So that information is already in the public domain.