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

My Lords, I agree that scrutiny is very important. The improvements which the noble Lord acknowledges provide a level of scrutiny which is not far out of kilter with what the noble Lord has described. In responding to the fourth report of the Public Administration Committee in another place, we said that we would reflect further on the committee’s recommendations on treaties, many of which were similar in broad outline to those proposed in the Bill, so there is further scope. Having so reflected, we feel that there may be scope for considering the placing of the Ponsonby rule procedure, currently a constitutional convention, on a statutory footing to increase the clarity and enforceability of the rule that government bring such matters before and to the attention of Parliament. Any change would require wide consultation right across government and there are no guarantees that it would be supported. But we intend to undertake such consultation shortly, which I am sure the noble Lord will welcome, and will inform the House of its outcome in due course. The Bill makes reference to overseas territories; it would have implications for the making of prerogative Orders in Council. We believe it could have a negative impact on our relationship with overseas territories. There are differences in the way in which constitutional changes are handled in the territories. All the territories’ constitutions are made or amended under statutory powers except those of Gibraltar and the British Indian Ocean territory which are made by Orders in Council under the prerogative. Those made under statutory powers are laid before Parliament but do not need approval. It would be anomalous to require approval for those made under the prerogative. I now turn to that aspect of the Bill which has exercised all noble Lords who have participated in the debate—the Civil Service. The Bill deals in large part with the regulation and conduct of the Civil Service. I was grateful for the comments of the noble Baroness, Lady Prashar; her description of the Civil Service as a public asset was one that we should hold dear. Her remarks advising us to avoid making the Civil Service a political football were very wise—we should avoid that at all costs. The Government are very keen to uphold the independence and integrity of the Civil Service, as I am sure were previous governments. My personal view is that we sometimes risk undermining those qualities in the currency of our debate. The Government are committed to maintaining that impartiality for the permanent Civil Service because it is an important part of the fundamental principles that underpin its operation. On 27 January this year, the Cabinet Secretary and the First Civil Service Commissioner launched the consultation on a new Civil Service code. A working group, consisting of Civil Service Commissioners and Permanent Secretaries was set up to consider the purpose and effectiveness of the code in autumn 2005. The noble Baroness, Lady Prashar, was the former chair of the working group. We are grateful to her for all her work, particularly on civil service recruitment, where great improvements have been made. The group strongly endorsed the need for a code, but agreed that it needed to be written in a way that would be relevant to all civil servants. The aim has been to produce a code which uses straightforward language and which will be relevant and accessible to all civil servants, whatever their jobs and wherever they work. Included in the code is the right for the Civil Service Commissioners to consider directly a complaint or concern from a civil servant about an issue under the code. This was one of the key issues raised in the consultation on the Civil Service Bill. For the first time, we make it clear that that forms part of the contractual relationship between a civil servant and their employer. The Ministerial Code and the code of conduct for special advisers place a duty on Ministers and special advisers to uphold the political impartiality of the Civil Service and not to ask civil servants to act in a way which would be inconsistent with the Civil Service code. In addition, we are doing much to strengthen existing arrangements. We publish an annual report to Parliament on special adviser numbers, costs and responsibilities, providing a transparency which did not exist before our administration. Updated codes of conduct for Ministers and special advisers were published in July 2005. We have put in place induction programmes for Ministers and special advisers to clarify roles and boundaries. They will affect the culture to which attention has been rightly been drawn in this debate. The Government have undertaken to consult the main Opposition party leaders on the appointment of the first Civil Service Commissioner and the Commissioner for Public Appointments. The Government did exactly that on the recent appointments of Janet Paraskeva, the first Civil Service Commissioner, and Janet Gaymer, the Commissioner for Public Appointments. Noble Lords will be aware that, in November 2004, we published a draft Civil Service Bill for consultation—I have been reminded of that many times today. We were the first government ever to do this. We are grateful to the noble Lord, Lord Lester, and the Public Administration Select Committee for their work on the draft Bill, which we found helpful in developing our proposals for consultation. As your Lordships know, the Government are considering the responses received during the consultation exercise. I repeat what I often say on these matters: we will make a Statement in due course. As I am sure noble Lords will appreciate, any legislation has to compete for its place alongside many other priorities. We are looking at the issues raised during the consultation, in particular at things that can be done which do not necessarily require legislation. As I have set out, we have made many changes without recourse to legislation. Before moving on to special advisers, I shall speak more generally about Civil Service reform. This is a priority for us because it is most important in improving the delivery of public services. After all, that is what the Civil Service is for. The Cabinet Secretary has set out a vision for a Civil Service which is inspired by four things: pride, pace, passion and professionalism. We are developing a more professional Civil Service. The Professional Skills for Government programme will deliver greater professionalism. We are creating stronger leadership in the Civil Service. In creating the National School for Government, we are supporting these areas through the development and delivery of training and development programmes, tied to the needs of a modern Civil Service. In addition, we are strengthening departmental capabilities through the work of corporate service leaders who are ensuring that departments have strong and well led services. My time is running out, but I could not pass up this opportunity to comment on special advisers, since that matter has occupied such a large chunk of discussion today. The noble Lord’s Bill makes a number of proposals in relation to special advisers, including placing the code of conduct on a statutory footing and requiring special advisers to uphold the integrity and impartiality of the Civil Service. As we know, the role of special advisers is not new. It goes back more than 30 years to the Fulton report and the introduction of special advisers during Harold Wilson’s time as Prime Minister. We need to keep the issue in some perspective, particularly numbers. Numbers were referred to on a number of occasions today. The noble Lord, Lord Kingsland, was tempted to put a cap on numbers. That was supported by others in the debate. However, there are only 81 special advisers in post compared to some 3,900 members of the senior Civil Service. I quote Sir Gus O’Donnell on this, when he spoke to the Public Administration Committee. He said:"““There are a very small number at the minute. I think it is something like 80, relative to the senior Civil Service, they are swamped””." He added, for good measure that,"““the system we have works extremely well””." A number of noble Lords made comments in that regard during the debate. The noble Lord, Lord Sheldon, who is a critic on these issues, said that he recognised the fact, and some years ago he was responsible in part for ensuring that special advisers were well paid for the special expertise that they bring. I welcome that endorsement of special advisers. It is worth reminding ourselves that special advisers must observe the highest standards of conduct—and woe betide if they do not, because we know that they get brought before the court of public opinion. I remind your Lordships’ House that it was this Government who introduced the Code of Conduct for Special Advisers and Model Contract for Special Advisers, setting out in clear terms the transparency and the nature of the conditions for their employment. That transparency did not exist under previous administrations. The other point that I want to dwell on, because it has come up on a number of occasions, is the change made to the code of conduct. The accusation is that it was amended to increase the powers of special advisers and to change their relations with permanent civil servants. The change of the wording was simply this: from ““advice”” to ““assistance””. I did not interpret that as meaning, and I do not accept that that means, that there were additional powers given to special advisers to direct civil servants. It was a change recommended to the Government by the Public Administration Committee, to reflect in reality the way in which special advisers work. For example, one long-recognised task of special advisers is occasionally to brief the media. That cannot simply be defined as advice to Ministers, as under the previous wording. So we should be a little bit sensible here about the words that are used and perhaps not read quite so much into them, because I do not see a conspiracy here to lead special advisers into a role that we simply do not see—that of them having special executive powers and powers to direct. It is the case that the Civil Service Order in Council permits the employment of up to three special advisers in No. 10 with executive powers to manage and direct civil servants. Currently only one special adviser has those powers—and I offer the reassurance, as I have on many occasions, that there are no plans to appoint any other special advisers with executive powers.