[Relevant Documents: The Tenth Report from the Public Administration Select Committee, Session 2007-08, on Constitutional Renewal: Draft Bill and White Paper, HC 499, and the Government response, Cm 7688; and the Eleventh Report from the Justice Committee, Session 2008-09, on Constitutional Reform and Renewal, HC 923, and the Government response, HC 1017.]
I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
I beg to move, That the Bill be now read a Second time.
In 1997, the Government embarked on an unprecedented programme of constitutional reform. Power was devolved away from Westminster to Scotland, Wales and Northern Ireland, fundamental rights were enshrined in the Human Rights Act, freedom of information legislation was introduced, national statistics were placed on an entirely independent basis, the Bank of England was made independent, and the first step was taken towards a reformed House of Lords.
Surveying all this in an editorial yesterday, The Guardian newspaper asked us to
“look at the last 12 years. Labour’s dispersal of power, had it been set out as a blueprint, would have appeared revolutionary.”
Actually, it was set out as a blueprint, although each step has always appeared rather prosaic. There has rarely been intense excitement in the House, apart from over the devolution Bills, as each step has been taken. I recall another exception, involving my hon. Friend the Member for Cannock Chase (Dr. Wright), one memorable evening during an untimed Report stage debate—which I hope to see back—of the Freedom of Information Bill, when what was described as a mutual seminar was engaged in. I offered to alter the Bill for the better, although some colleagues perhaps think differently. Anyway, I offered to alter it to make it more workable as a result of the intense debate that took place. Generally, however, these proposals have been widely accepted.
This Bill is similar, because, while each of its proposals could be dismissed as prosaic, when added to all the other changes that have been introduced in the past dozen years, they will add up to a major shift in power away from Whitehall to Parliament and to the British people. In other words, the Bill builds on our achievements and has been designed to bring about the right relationship between Parliament, the Government and the citizen.
The provenance of the Bill is the announcement by my right hon. Friend the Member for Kirkcaldy and Cowdenbeath (Mr. Brown), just after he became Prime Minister in June 2007. Indeed, his announcement to the House on 3 July was his first major announcement on any issue as Prime Minister. Alongside that announcement, I published the Green Paper “The Governance of Britain”, which set out further proposals for reforming our constitutional arrangements.
Nobody can doubt that the Government have pursued a huge agenda on constitutional reform, but may I press my right hon. Friend on the way our judges have been appointed? Does he feel that we perhaps went a little too quickly as far as judicial appointments were concerned—hence the concerns that have been expressed about some of the constitutional changes? I am not talking about the grand vision of what the Government have done—which has been amazing, in my view—but about some of the detail, which really needs to be scrutinised very carefully.
I agree with the gravamen of what my right hon. Friend says. Surprisingly—or amazingly, to pick up the adverb used my right hon. Friend—not everything that the Government have done over the last 12 years has been absolutely perfect. [Interruption.] Much has been but, with the benefit of hindsight, the changes to judicial appointments, although very well intentioned and aimed at ensuring that Ministers—in practice, only one Minister, the Lord Chancellor—were removed from the process, have had some odd and perverse consequences. The process has become longer and it is also a matter of great regret that the progress gradually being made to improve the diversity of the judiciary, particularly at senior level, with more women and more black and Asian people has been stemmed. My right hon. Friend, along with the whole House, is concerned about that, and I view it as significant.
A further matter was aired by Lord Phillips in a major lecture he gave in Kenya when he was Lord Chief Justice. There is a role, although it has to be a careful role, for the Executive in the appointment of the most senior members of the judiciary. That is true in all Administrations and it has to be very carefully exercised. Some of that was accepted in the Constitutional Reform Act 2005, but it remains to be seen whether that, and a more sensitive overall arrangement for judicial appointments, should be introduced in future.
It is my understanding, however, that the Bill will do the opposite of what my right hon. Friend intends. Is it not the case that the Bill will remove the Prime Minister from the process of the appointment of the president, the deputy president and members of the Supreme Court?
It removes the Prime Minister’s role, but it does not remove that of the Lord Chancellor. Successive Prime Ministers would probably accept that, in practice, the acceptability of appointments has simply been in the hands of the Lord Chancellor of the day. I may be wrong, but I have never heard of any Prime Minister turning back a recommendation for a senior appointment made by the Lord Chancellor of the day. The Prime Minister today is very happy about that; so, may I say, am I.
But that is not the problem; it is the bureaucratic process that is the problem.
Let me return to summarising the Bill. Following the publication of the Green Paper, we established a programme of work to look at limiting Executive powers, to examine how the workings of Government could be made more transparent and accountable, and to consider what we might do to reinvigorate our democracy. I have already said that we made significant changes, including to respective arrangements for appointing bishops and the granting of honours, and to further rules on the pre-release of statistics. Gone are the days—the terrible days—of the previous Conservative Administration, when the Secretary of State for Employment, now Lord Tebbit, was able peremptorily to change the definitions of unemployment, for example, 18 times to suit the Government—[Interruption.] Well, it is true. Let me provide a further example for the hon. Member for Chichester (Mr. Tyrie)—that of sitting on major recommendations for major changes in the crime statistics, which would have had the effect of increasing the number of crimes counted. I accepted those changes in 1998, and my right hon. Friend the Member for Sheffield, Brightside (Mr. Blunkett) accepted further ones in 2001, but the Opposition subsequently used them, quite preposterously, to suggest that violent crime had increased, when it was obviously the counting of violent crime that had increased. In any case, we have done that, just as we have established a Youth Citizenship Commission and published a national security strategy and the draft legislative programme—all those things in the Prime Minister’s statement of 3 July 2007.
I deal now with the detail of the Bill. Ever since the Northcote-Trevelyan report of 1854 and the appointment of the first Civil Service Commission in 1855, the British civil service has been one of the best in the world, renowned for its professionalism, integrity and impartiality, and for its ability to serve successive Administrations of different parties with their confidence—but never before has the service been placed on a proper statutory basis, with protection for its values and its staff. The Bill does that.
I welcome the provisions in the Bill, but one small part is missing: the part that I have been promoting for a number of years in a private Member’s Bill to deal with nationality discrimination in Crown employment. There have been many recommendations for dealing with the matter, and I think that the Bill has cross-party support, except from one or two of the backwoodsmen on the Opposition Benches.
The nationality discrimination that we operate is contrary to a number of the United Kingdom’s international human rights obligations. Perhaps my right hon. Friend will consider whether it would be possible to introduce the three or four new clauses necessary to deal with the problem. That would ensure that if rules did require people to be United Kingdom nationals, those rules were genuinely needed and did not perpetuate long-standing discrimination that goes back 200 or 300 years.
I understand my hon. Friend’s concern. I can tell him two things. First, he will have every opportunity in the course of what I believe will be a significant amount of time on the Floor of the House to table his own amendments. Secondly, I shall be happy to ensure that both the Minister of State, Ministry of Justice, my right hon. Friend the Member for North Swindon (Mr. Wills), and I discuss the matter with him. I understand that proposals with which I used to be familiar— [Interruption.] Did the hon. Member for Cambridge (David Howarth) say something sotto voce?
I mean that I used to be completely familiar with them. I do not retain every last detail of every issue that I have ever examined in the House, but perhaps the hon. Gentleman would if he were in my place.
Part 1 of the Bill places the Civil Service Commission on a statutory footing, and reinforces its independence from Ministers. The commission’s status, powers and reporting arrangements are contained in schedule 1, as is the fact that the commissioners are appointed by Her Majesty on merit following fair and open competition. Part 1 also sets out the power of the Minister for the Civil Service and the Foreign Secretary to manage the civil service and the diplomatic service.
Although it purports to be United Kingdom-wide, the Bill regrettably ignores the constitutional debate that is raging up in Scotland. The Secretary of State’s party, along with the Conservatives and the Liberal Democrats, engaged in the Calman commission process. That commission recommended that the appointment of chief civil servants should be devolved to Edinburgh. This is the first opportunity that the House has had to legislate for that. Why is such a measure not included in the Bill?
The Bill does not ignore that debate. Its purpose is to place the existing arrangements for the civil service on a statutory footing. If in due course it were generally agreed to devolve power over the United Kingdom civil service altogether to Scotland and Wales—Northern Ireland has long had a separate civil service—that could come before the House in due course, but as the hon. Gentleman, who I know is a partisan in this respect, will recognise, there is much to be said on both sides. Some of us believe that following a devolution settlement that transferred a significant amount of power from Whitehall and Westminster to Edinburgh, it is important to maintain some of the glue of the Union. While the hon. Gentleman’s interest is in putting solvent in the glue, ours is in ensuring that the glue stays strong. I am pleased to note that the hon. Member for Epping Forest (Mrs. Laing), who hails from Scotland, endorses what I have said.
The Government are committed to a civil service that is governed by the key principles of impartiality, integrity, honesty and objectivity. We believe those values should be enshrined in statute. Part 1 therefore requires the Minister for the Civil Service and the Foreign Secretary to prepare and lay before Parliament codes of conduct for the civil service and the diplomatic service, with certain minimum requirements. Those codes will form part of the terms and conditions of civil servants, and the Civil Service Commission will be able to investigate allegations that the code has been breached.
I warmly welcome the proposals to place the civil service on a statutory footing in terms of requirements for its practice, but is my right hon. Friend satisfied that those proposals extend to the full area that the civil service currently occupies? Following the Northcote-Trevelyan report, which resulted in an arrangement for an undifferentiated civil service, we have next steps agencies, non-governmental bodies and various agencies of the civil service which expand the definition of the civil service to a considerable extent. Is he happy that the Bill’s provisions cover what we now regard as the civil service in its full, differentiated glory?
I hope they do, but as my hon. Friend raises this point let me add that I am happy to ensure that they do. There is an issue to do with the growth of next steps agencies and non-departmental public bodies, which have arisen since the reforms introduced by the previous Administration in the early 1990s. It is certainly of concern to me that NDPBs can appoint their own staff and that they are not public servants; that creates difficulties and can lead to unacceptable and unjustifiable levels of pay and wage drift, as well as other anomalies and conditions.
Let me now turn to an issue in which some of us should declare at least a past interest, and in which others may have a future one: the role of special advisers. It says in my speaking notes:
“Special advisers have a valuable role to play in advising and assisting Ministers on Government policy.”
I thank the hon. Lady for that. I was about to say that I was one of the very first such advisers, back in 1974, but I know that the hon. Lady was too, and there may be others on both sides of the Chamber—such as the hon. Members for Chichester and for West Chelmsford (Mr. Burns).
Special advisers add an important dimension to the advice available to Ministers while reinforcing the political impartiality of the permanent civil service by distinguishing from it the source of political advice and support. Before the introduction of special advisers, civil servants were sometimes placed in a compromising position where they were expected to undertake what were explicitly political roles. Before that, there had been quite a tradition of private secretaries of senior Ministers being appointed by the Minister on a personal basis, which meant they were, in a sense, in the same position as political advisers. I acknowledge that I am biased on this matter, but I think good political advisers can greatly assist not only their Ministers but the functioning of the civil service.
I am grateful to hear the Secretary of State’s view, and I have no doubt at all that special advisers can play an important role. The Bill puts the code of conduct for special advisers on a statutory basis, but why should we consider that that will make any difference when the code of conduct as it existed did not prevent Mr. McBride from behaving in the way he did in the Prime Minister’s office?
I think that having the code on a statutory basis will make a difference to behaviour, because there is a difference in terms of the status and authority of a code if it is on a statutory basis. I do not excuse what happened then in the least—nobody would—but codes may be broken under any Government, and where they are, appropriate and tough action must follow.
May I put to the Lord Chancellor a point that I hope he will keep an eye on? In terms of our discussions in the House about whether the staff of Members should be employed by the House—there are quite good arguments for doing that—we risk getting a mismatch with what is happening in the Bill. If Members have on their staff a person who is essentially a political adviser, were he to be made subject to the civil service-like conditions of the House itself there would be a disparity between Back-Bench Members and Ministers. I hope the right hon. Gentleman recognises that, given his interest in the Bill, he should keep a continuing interest in those discussions.
We will, of course, keep a continuing interest in those discussions, but let me also say the following. I employed people under Short money when I was in the shadow Cabinet for 10 years and on the shadow Front Bench for 17 years. The truth is that those employed under Short money are subject to far fewer, if any, restrictions than special advisers. I know that to my certain knowledge. I should also mention that the amount of Short money available to the Opposition has trebled in the past dozen years, although they have not made much use of it.
The Bill is about setting down some fundamental principles. We think that one such principle is that special advisers can “assist” Ministers—the Bill uses that term—but they cannot take Executive action or give orders to civil servants. The Bill does not specify that—does my right hon. Friend think that it should?
In practice, special advisers cannot do that; I am certainly ready to consider amendments to that effect. May I also just say—I have often reflected on this—that I was an adviser for three and a half years and I have appointed advisers for the past 12 and a half years, and in neither role would I have thought it remotely appropriate for a special adviser to have given instructions to a civil servant, but there are some exceptions, which need to be borne in mind? When he came into office, the Prime Minister decided to repeal the Order in Council, introduced in 1997, that allowed for Jonathan Powell and Alastair Campbell to be able to give such instructions. I think that the Prime Minister was right to repeal that, given the concern, but I do not necessarily think this is something that ought to be enshrined in statute; it may be better if it were in the code, because I do not remotely regard it as a hanging offence for a future Prime Minister to decide, for example, that the head of his office should combine both roles. That is a different role from that of any other special adviser, but we can discuss that when we consider the details of the Bill.
The Bill also enshrines the principle of appointment to the civil service on merit, and the principle of fair and open competition.
On the issue of treaties, every year, the UK becomes party to many treaties that result in binding obligations under international law. Treaties that come into force after the Government have expressed their consent to be bound through a formal act such as ratification are subject to the so-called “Ponsonby rule”. It was named after Arthur Ponsonby, who was a member of the first Labour Cabinet, which sat for nine months in 1924. The rule requires the treaty to be published and laid before both Houses for a minimum of 21 sitting days prior to ratification, in order to give Parliament an opportunity to scrutinise it.
Although the Ponsonby rule is well established—it was quickly abandoned by the Conservative Administration who won the election in 1924, but it has been followed post-war—it is based on constitutional convention, rather than law, and Parliament has no ability formally to veto a ratification; it has been a Crown matter. As Foreign Secretary, I felt that that was simply wrong. One of the key roles of a Parliament is to decide whether or not to ratify international instruments; the power should be one for Parliament and, in particular, for this place; it should not be a power for the Crown. I am delighted, as Justice Secretary, to put that right. Part 2 of the Bill places the Ponsonby rule in statute and, for the first time, gives legal force to a negative vote in the Commons on the ratification of international treaties.
Where Parliament requires more time for scrutiny, the Bill enables a Minister to extend the 21-day period in respect of a treaty. Consistent with the Ponsonby rule, provision is made for flexibility in exceptional circumstances, and there are exceptions for specific categories of treaty that are already subject to other scrutiny arrangements. I am sorry not to see the hon. Member for Stone (Mr. Cash) in his place, because I was fully expecting him to rise to the bait in this Bill and say what an outrage it was that European Union treaties were not mentioned in it. For those who wish to take his place and foam at the mouth at the very idea of the European Union, I must say that EU treaties are mentioned. Colleagues will see that clause 24(1) states that this set of arrangements does not cover treaties that amend founding treaties of the European Union. That is because there is already more extensive provision requiring those to be ratified by this House and by the other place.
The third part of the Bill deals with the House of Lords. The House of Lords Act 1999 was an historic and long overdue reform that removed the majority of hereditary peers. Part 3 of the Bill contains a package of measures to continue along that path towards a more legitimised second Chamber. Colleagues will recall that when that legislation was going through the other place it ran into a roadblock set up by a Cecil, Viscount Cranborne. That family have five centuries, at least, of experience of disrupting government when they do not agree with it.
As a consequence of the roadblock, a deal was struck between those on the Opposition and Government Benches, under which 92 hereditary peers would remain. Two would remain ex officio: the Lord Great Chamberlain and the Earl Marshal. There is no argument about those positions continuing to remain hereditary as long as we have them. I would advise all colleagues, whatever else they feel about the House of Lords, not to get into an argument about the future of the Lord Great Chamberlain or the Earl Marshal. They are both very good people who do difficult jobs and a great deal of work, which is mainly unsung.
Under the deal, the other hereditary peers had to form themselves into electoral chambers and elect from their number a total of 90. At the time—as I will perhaps be reminded—my noble Friend Lord Irvine said:
“I respond to the noble Lord, Lord Weatherill, by saying quite unequivocally to the House that that figure of 90 will be honoured by the Government throughout the period of the transitional House.”—[Official Report, House of Lords, 11 May 1999; Vol. 600, c. 1094.]
I could well be asked why we are changing that arrangement at this stage. First, we are not requiring any current sitting hereditary peer to resign his place in the Lords. They will remain until they depart this mortal coil or until further measures are introduced.
Secondly, as far as I am concerned, and, I think, as far as the House is concerned, 10 years ago there was no agreement whatsoever even within parties, still less between parties, about the future of the House of Lords. We had a royal commission, which did great work although its recommendations were not entirely accepted, and then abortive votes in this House in February 2003. We then had all-party talks between 2006 and 2007, the presentation of a White Paper in February 2007, which I was honoured to present to the House, and votes in this House that opted clearly, on an all-party basis, for an 80 or 100 per cent. elected Chamber and against all other alternatives. There was then an intensive period of further all-party talks that used that agreement as a template. I pay tribute to colleagues from all parties who took part in those talks. A further White Paper, published in July 2008, set out how that agreement would operate and further work is now being done—
In a moment. Further work is now being done to bring about a framework for and draft clauses of a Bill to implement that agreement. In my judgment, therefore, the transitional House that people had in mind 10 years ago is not what we envisage now. We are through that phase.
Before I accept the intervention from the hon. Member for Cambridge, let me just say that the by-elections have now reached a risible position. We are now electing people to the House of Lords who were not hereditary peers at the time that the House of Lords Act was passed.
They are the sons. I note the point that the hon. Member for Epping Forest (Mrs. Laing) makes, but because of the time that has elapsed the system of by-elections has been used not to weaken the hereditary principle but to maintain it.
We should look at the sort of electorates involved, as they flatter the electorates for the unreformed House of Commons before the Reform Act 1832. Dunchurch, which fell into the sea, had 32 voters: in the last election for a hereditary, there were just 27 voters—and 33 candidates. Moreover, one electoral chamber has just four electors.
I thank the Justice Secretary for giving way. As he will know, there were far fewer candidates in the days of the pocket boroughs, but will he confirm that the second part of what he said about the future of the House of Lords takes precedence over the first? Is he really saying that the hereditaries there now can stay as long as they are alive? The youngest hereditary is 38 years old, which means that we could have the hereditary principle for perhaps another 50 or 60 years. Will he give us some idea of what he sees as the timetable for switching to a fully elected, or 80 per cent. elected, House of Lords?
Perhaps I did so rather too parenthetically, but I did add a coda to the effect that hereditary peers will be with us until they are taken from this mortal coil, or until Parliament passes legislation that transfers them out of the House.
A great deal of detailed work, including the drafting of clauses, is now taking place to do what Parliament asked—that is, to introduce over three Parliaments a House of Lords that is mainly or wholly elected. Although the Labour party manifesto has not been drafted, I would be astonished if it was not our commitment to bring that into legislation early in the next Parliament. I hope that the party of the hon. Member for Cambridge shares that commitment.
The Justice Secretary has rightly pointed out the temporary nature of these arrangements, but would it not have been useful to bring in the category of temporary peer? The Government of all the talents was a very unrewarding experience: peers were appointed specifically as Ministers, but after a year or so in the role they ended up disappearing back into the private sector with a seat for life in the legislature. That is a very unsatisfactory arrangement. Is this Bill not an opportunity to ensure that temporary peers appointed specifically as Ministers no longer have a place in the legislature once their term of ministerial office has ended?
I am not opposed to that principle, and I do not guarantee what stand the Government will take when the matter comes up. Other suggestions to have been made include appointing people to the Lords for 10 or 15 years. The whole House—and I include the Government and myself in this—need to be open-minded about the matter.
Before the Lord Chancellor moves off the section of his speech dealing with the reform of Parliament, I want to talk about the dog that has not barked in this Bill—that is, the proposals for the recall of errant Members of this House, to which I think that the Prime Minister has signed up. Will the Lord Chancellor tell us something about his plans in that regard, and whether he intends to bring forward amendments in Committee that would fill that gap?
We are not intending to introduce amendments to this Bill that would fill that gap, although we do intend to publish proposals about it. I think that everyone understands the need for electorates to have the right to recall errant Members if they are not dealt with properly in this or the other place. However, a general election has to take place before 3 June, so every Member of this House will be subject to recall within the next six months. As it happens, therefore, there is no urgency for this Parliament to make a decision on the matter. It is important that we get it right: I do not want a recall mechanism that means that hon. Members who are assiduous and hard working can be recalled because of a policy argument, or because they voted against capital punishment or abortion rights, for example.
The experience in the United States varies. There is no recall mechanism for Members of Congress, nor for senators. There is a recall mechanism in some states of the Union. In some of those states, it is done for reasons; in others, it can be done without a reason. Although the recall mechanisms are rarely used, the threat of them can be very disruptive to the right of individuals to do as Edmund Burke said—to represent their electors and not to be their delegate.
Further to the intervention from my hon. Friend the Member for Cities of London and Westminster (Mr. Field), has the Lord Chancellor had a chance to look at the proposals that set out in some detail a term peerage approach—the paper that I wrote with the present shadow Leader of the House when he was a Back Bencher, my right hon. Friend the Member for North-West Hampshire (Sir George Young)? Does that have the Lord Chancellor’s support, and might he be prepared to consider an amendment in Committee to enact some of those proposals?
I have indeed read them. I think they were published by the University college London constitution unit. I do not wish to damage the hon. Gentleman’s future career, but I thought they were rather good. I do not say that I agree with every part of them, but I am open-minded about the issue. I do not want to give a guarantee that we will accept amendments on it, because the usual processes of consulting in government have to take place, but I certainly wish to consider the proposals. I hope that is a reasonable undertaking.
I shall make progress on other matters, as others wish to speak. Part 3 on the House of Lords includes measures to ensure that the House has a robust disciplinary regime to deal with misconduct, to ensure that peers can be suspended or expelled, which they currently cannot be. It provides that peers are to be disqualified from the House after a conviction for a serious criminal offence or being subject to a bankruptcy restrictions order. Currently it is an offence to the public that Members may have been convicted of a serious offence and may still be able to serve, which Members cannot do in this House. Part 3 also allows peers to resign and, if they wish to do so, to disclaim their peerage. I have already indicated that we intend to bring forward proposals for further reform.
Part 4 deals with public order. The right to peaceful protest is an important liberty and an essential component of a healthy democracy. Following the statement from my right hon. Friend the Prime Minister in July 2007, we have been reviewing the law on protests around Parliament. Our starting point has been to remove unnecessary restrictions on the right of protest, with a presumption in favour of freedom of expression, balancing that with the requirement that Members should be able to gain access to the House freely, that their work should not be disrupted, and that the general public, who may not necessarily be taking part in demonstrations, should not have their rights disrupted.
Although I fully appreciate that the Government are seeking to minimise any unnecessary restrictions on the right of peaceful protest, are the Government confident that by extending the ban to only 250 metres, that will allow proper and reasonable access to this building?
I welcome the repeal of the Serious Organised Crime and Police Act 2005 in so far as it applies to Parliament. That follows recommendations that my Committee has made on a number of occasions. The particular concern that I have is that the alternative arrangements are to be made by regulation. There is a non-exhaustive list of conditions in the schedule. Would my right hon. Friend consider an exhaustive list, and also consider putting the conditions on the face of the Bill to ensure that we have legal certainty in this difficult area of the law?
Part 4 is very different from the provisions in the Serious Organised Crime and Police Act 2005, which are being repealed. It gives a senior police officer the power to impose certain conditions, and it amends the Public Order Act 1986. Those provisions in the 1986 Act and other, similar provisions are quite standard, and we must balance the right of demonstration with the need to ensure access and proper order. I see the hon. Member for this House—the hon. Member for Cities of London and Westminster (Mr. Field)—in his place, and I hope that once the provision in the 2005 Act goes, we will be able to persuade Westminster city council to use its existing powers in byelaw to control noise.
Nowhere else in the country would tolerate such megaphone disruption. Leaving aside what the protestor says, because I am not bothered about that, I must say that the current situation can be very disruptive for people in the building. It is terrible for the police officers and other staff on the gate. The relevant powers already exist to deal with the matter, so I hope that Westminster city council will use them rather more assiduously than it has up to now.
The Secretary of State will, I am sure, appreciate that there is an issue not simply for Westminster city council: advice is taken from the Metropolitan police, and there are elements in the vicinity to which the ambit and rule of the Mayor of London also applies. However, I agree with the right hon. Gentleman: I personally feel that there is a right to protest within the vicinity, but the incessancy and volume of the noise is intolerable for those who work here, and for the residential population, who do not live too far away. I agree with him, but I should not want to water down the notion that there is some right, within what is an important part of the British constitutional make-up, to protest here. We need a balance, but I do not disagree with the right hon. Gentleman’s view that the balance has gone too far in one direction.
May I just say, parenthetically, that I am one of the world’s experts on the land ownership of Parliament square? When it was dug up in 1999 during the “Stop the City” demonstration, I was Home Secretary and the Met’s police authority, and there were real problems about which part was owned by whom.
I am rather worried by the Lord Chancellor’s reply to the hon. Member for Hendon (Mr. Dismore). The point about schedule 4 is that it provides extra powers over and above those about public order, and as far I can see, it provides them for the purpose only of
“maintaining…access to and from the Palace of Westminster.”
The Lord Chancellor has, however, talked about using those provisions—not the more general ones, but those provisions—for more general public order purposes, and the schedule should not be interpreted that way.
No. Will the hon. Gentleman excuse me? I have already been speaking for almost 45 minutes, and I need to stop.
Part 5 concerns human rights claims against the devolved Administrations in Northern Ireland and Wales. It has been introduced because the problem has been particularly acute in Scotland. Hon. Members will wonder why, therefore, Scotland is not mentioned in part 5, and that is because discussions are taking place with the Scottish Executive about the clauses, and relevant provisions will be brought forward in Committee.
The issue arises from the Law Lords’ judgment in Somerville v. Scottish Ministers, which found that the one-year time limit for claims under the Human Rights Act 1998 did not read across to human rights claims brought under the Scotland Act 1998. The same applies to the Northern Ireland Act 1998 and to the Government of Wales Act 1998. With some exceptions, about which I do not think anybody argues, we will correct that point. I know that the news has been greatly welcomed in Scotland.
Part 6 deals with courts and tribunals, and it seeks to strengthen the independence of the judiciary and improve the appointments process.
Part 7 has important proposals for strengthening the independence and the role of the Comptroller and Auditor General—and the National Audit Office—as well as in respect of his appointment.
Part 8, which relates to the transparency of Government financial reporting to Parliament, refers to a point that was raised by my hon. Friend the Member for Southampton, Test (Dr. Whitehead) about how Government spending is reported to Parliament. At present, the spending of some quangos and non-departmental public bodies, and certain other central Government bodies, is included in the budget of the parent department, but not in the estimates or resource accounts. That can make for complications and make it more difficult for Parliament to exert its control over Supply, which is one of its principal functions. Part 8 permits the Treasury to issue directions on how Government Departments prepare estimates. It provides for the consolidation of spending by NDPBs and other central Government bodies into Supply estimates and departmental resource accounts.
Would not this proposal be more credible if we had the American system so that all Members who sit in this House also had to make financial declarations? That is standard practice in Congress and in the Senate. It is very important that this is not just about how Parliament reports itself but about how Members report their financial interests.
If my hon. Friend will forgive me, I do not want to follow him down that route. We have to make declarations of financial interest anyway. If he is proposing that we should have to make declarations of wealth, I would say that that should perhaps be referred to a special Committee of the House. The Bill is quite comprehensive, but I think, if he does not mind, that we would find ourselves slightly diverted if we went down that route. However, I am happy to discuss it with him.
The Bill also allows Welsh Ministers to include information relating to the use of resources by designated bodies in Wales.
No, I am afraid that I must make progress.
The Bill is before us at a time when it is perhaps more important than ever that we make every effort to restore trust in our constitutional settlement and in our political and parliamentary institutions. Building on the process of reform that this Government began in 1997, which The Guardian newspaper heralded as revolutionary, the Bill will increase the accountability and legitimacy of British democracy and better ensure that power lies where it should—with Parliament and the people. I commend the Bill to the House.
Let me begin by saying how much we welcome the fact that this Bill, for which we have been waiting for about two years, has finally arrived. I assure the House that we welcome many of its provisions, as the Lord Chancellor will have appreciated from the interventions that he received. I have to tell him, however, that its title rather belies the paucity of its content. I fear that it is unlikely to take its place as one of the great reforming Acts.
A little over two years ago, the Prime Minister, in his first speech to this House in that role, made a statement that was intended to define his vision as Prime Minister. I remember it very well. He promised us
“change in a spirit that takes us beyond parties and beyond partisanship…a new…constitutional settlement…a new relationship between citizens and Government”,
and it was to start immediately:
“I can today make an immediate start”.
What happened? Let us have a look at the areas where he pledged that immediate start—12 areas where the Government would surrender or limit their powers:
“the power of the Executive to declare war; the power to request the dissolution of Parliament; the power over recall of Parliament; the power of the Executive to ratify international treaties…the power to make key public appointments…the power to restrict parliamentary oversight of our intelligence services; power to choose bishops”
“judges; power to direct prosecutors in individual criminal cases; power over the civil service…and the Executive powers to determine the rules governing entitlement to passports and the granting of pardons.”—[Official Report, 3 July 2007; Vol. 462, c. 815.]
According to my calculations, we are still waiting for the Government’s proposals on war powers, dissolution, recall, the intelligence services, prosecutors, passports and pardons. Treaties, judges and the civil service are covered in the Bill.
Having set out the 12 priorities for immediate action promised to us by the Prime Minister in his grandiloquent phrases, we find that only two—on bishops and quangos—have actually been implemented. Having seen the recent behaviour of the Secretary of State for Children, Schools and Families in respect of the Children’s Commissioner, we can probably fairly say that it is only one and a quarter or one and a half.
The Prime Minister went on, in what I am beginning to think was a moment of fantasy, to say that he had some big ideas. There were citizens juries—what happened to them? There was the statement of British values, which is the pet project of the Minister of State, the right hon. Member for North Swindon (Mr. Wills). I understand that a roadshow is about to start to do with that, but all I can say is that it looks like it will be a very slow road. One by one, the Prime Minister’s initiatives have fallen by the wayside—British day, a national motto, citizenship ceremonies for school leavers, rewriting the national anthem. It is amazing how extensive and far-reaching it all was.
What is the source?
I do not want to interrupt the flow of the hon. and learned Gentleman’s speech, but he must root it in facts. First, he should give us the source for this thing about the national anthem. Secondly, as he well knows, it is not a roadshow that we are embarked on in relation to a statement of values but properly mediated, deliberative events, to which he was invited. [Interruption.] Opposition Members may laugh, but such events are reputable and respected in the academic community and they are supported by all parties except the Conservative party. The hon. and learned Gentleman was invited to take part and refused. The events are under way, and he does not want to take part. That is a matter for him, but he should not accuse us of not doing something that we promised to do, because we are doing precisely what I have described.
Yes, the Minister did invite me to take part. He rang me up and politely asked whether I would like to participate. I indicated that I did not wish to. He even asked me whether I would want to make a video clip that would be shown before the start of each roadshow explaining why people should not participate in it. I declined that politely, too. He then wrote me a rather extraordinary letter—I thought that our conversation was private at that time, not that I mind—setting out with considerable hysteria how dastardly of me it was not to wish to participate in the exercise. Be that as it may, I hope that he has an enjoyable time going around on this consultation process. It seems to me that if the number of his party’s Back Benchers present this afternoon to consider this major piece of constitutional legislation is anything to go by, it does not have much mileage in it.
Meanwhile, confidence in our democracy drains away. The Prime Minister, who promised that Parliament would be given a say on the calling of a election, chose to cancel one in an interview with Andrew Marr. Then he skulked off to a Portuguese anteroom to break his manifesto undertaking on the European constitution, in the vain hope that by signing it when everybody else had left the building, nobody would notice what he was doing.
We then had a bizarre announcement, through the constitutional novelty of a YouTube video—I wondered at one stage whether that would be included in the Bill as a constitutional method of communication—that because some Members had broken the rules on parliamentary allowances, we could restore confidence by keeping the allowances and abolishing the rules. That idea did not last very long.
We also had an Opposition politician arrested on the back of grossly exaggerated claims by the Cabinet Office, and a disgraceful and vile campaign against Members of this House orchestrated from within the Prime Minister’s office by Mr. McBride. I look forward to ensuring that the code of conduct on special advisers means that that never happens again. It is worth remembering that that story was leaked to a friendly journalist in an attempt to minimise the damage, but even when the details of the smear campaign became public, the Prime Minister’s first response was not that of the Secretary of State—to say that something had to be done about this awful thing—but to keep his special adviser in post and defend him. I think that that was something to do with the Prime Minister’s moral compass.
At every turn, therefore, there is a chasm between the Prime Minister’s words and his actions. We have the National Democratic Renewal Council, but I am not sure what it does. Does it just sit and work out new headlines? One day the Prime Minister tells us that he will change the royal line of succession, but that is not in the Bill. He told the BBC that he is going to change the voting system, but that is not in the Bill either. Once the headline has been banked, it is left to the Secretary of State and Lord Chancellor to try to get him off the hook and kick most of the proposals into the long grass.
If any of the announcements had been serious—[Interruption.] Of course I will give way to the Secretary of State.
The whole of this is serious. My right hon. Friend the Minister of State will respond in detail to some of the hon. and learned Gentleman’s points, but let us take, for example, the issue of war powers, which he mentioned. I was going to mention it in my speech, but as I had taken so many interventions and since it is not in the Bill, I decided not to do so. Just so the House can be informed—the hon. and learned Gentleman knows this very well—let me add that there was a serious debate in both Houses about whether provision on war powers, which everybody agrees ought to be exercised by this House, should be included in statute or would better be made by resolution. As it happens, I personally favoured putting the basic power in statute, although I was in a minority. Others took a different view, including the other place and the Committee of both Houses that examined the issue. It is therefore well known that we will deal with such matters by resolution. That measure is being drafted, and we aim to introduce it by the end of the year. What is wrong with that?
I do not doubt the Secretary of State’s sincerity. If I have been taking his comments in what I hope is a slightly light-hearted fashion, it is for the deliberate reason that we are a little way into the prime ministership of this Prime Minister, and it looks to me as if we are running out of time before the coming election for most of those extraordinary pledges to be implemented. When one looks at the promises that were made, in very specific terms, one is left with the impression that it was all just window dressing. That reflects very badly on how the Government conduct their business: it raises public expectations and they use grandiose phrases, but the mountain moves and out comes the mouse. That is all we have. The mouse may be beautiful and well formed, but a mouse it is nevertheless.
May I totally refute what the hon. and learned Gentleman says? Any single proposal, particularly one that has broad support and that is therefore not the subject of intense controversy, can be dismissed as prosaic, but the total adds up to something really significant.
The hon. and learned Gentleman cannot have it both ways. After my right hon. Friend the Prime Minister made his announcement, we did not introduce legislation and try to bounce it through the House, as we could have done within the first 12 months of his Administration. Instead, we set up a deliberative process which, above all, involved consulting the House and the other place. Not one or two but three separate Select Committees, including Joint Select Committees, have considered the matter, and I pay tribute to everybody in both Houses who did so. It is true that some time has elapsed, but the proposals in the Bill are better for it, and there is much more widespread agreement. That is the main reason why the Benches on both sides of the House are not packed—people believe that there is consensus across the Houses on the measure.
I thank the Secretary of State. In tribute to him, it seems that he has injected a note of reality into the fantasy world that was being manufactured two years ago. Of course, some of those other measures may be in the Labour party manifesto for the next election, but that is not to say that that will not also be fantasy.
I do not want to take up too much of the House’s time, so in respect in constitutional renewal, I simply make this point: I notice that the long title of the Bill omits the words “and for connected purposes”. If I were a suspicious individual, I would think that the Justice Secretary had done that to prevent hon. Members from tabling amendments on wider constitutional issues. I am sure that he will tell me that I am completely wrong about that. Perhaps it was thought unnecessary given that, in the words of the constitutional expert Robert Hazell, the Bill is more a constitutional reform (miscellaneous provisions) Bill. That is where the whole thing has gone off the rails.
I shall highlight the measures that we support. They include the measures that would put the civil service on a statutory basis, although I agree with the Joint Committee that that would have been better dealt with in a short, stand-alone civil service Bill. We will consider how the proposals can be improved, especially in adding a duty to manage taxpayers’ money to the civil service’s core values.
The hon. and learned Gentleman is making an entertaining speech, but it is short on the substance of what the Opposition actually believe in. In regard to the civil service and the renewal of commitments in the Bill, are he and his party definitely committed to the neutrality of the civil service?
Of course we are. I have to say to the right hon. Gentleman that anxieties over the extent to which the neutrality of the civil service has been eroded over the past 13 years have been a persistent theme in this House for those of us participating in debates. That has centred on several issues, including what happened in the run-up to the Iraq war and the way in which dossiers prepared by civil servants for impartial distribution to this House appeared to have been tinkered with under political pressure. I could cite a large number of other examples.
My impression is that the basic cause of leaks from the civil service has been the breakdown in trust between civil servants and Ministers about the accuracy of what Ministers say. It is apparent if one looks at how the civil service has operated for at least 100 years that Ministers took the rap for things that went wrong in their Departments—something that seems to have vanished almost entirely, as civil servants are hung out to dry while Ministers stay in office. That has probably had a very deleterious impact on civil service morale.
On several occasions, including some under the right hon. Gentleman’s stewardship of the Home Office, civil servants have leaked information that diametrically challenged utterances by Ministers, who had been putting out material that was thoroughly misleading. Indeed, in some cases, ministerial careers have been ended on the back of that phenomenon.
Well now, I have to be careful, because I admit that my memory may be at fault as to whether some of these incidents took place under the right hon. Gentleman’s stewardship or that of his successor, and to that extent I am prepared for him to correct me. I seem to recollect the case of a civil servant based in Romania, who provided information about the way in which visas were being distributed that directly challenged what was said by Ministers in this House. That was a serious example of Ministers thoroughly misleading the public about what was going on.
The hon. Gentleman is right that that did happen in early 2004, and the Minister responsible resigned, even though the mistake was made by civil servants in the Department and another Department, not by her personally. He has underlined entirely the point that I was seeking to make. Ministers do not only take the rap, they take it for mistakes made by their own civil servants.
The right hon. Gentleman is correct to say that the Minister resigned, but it took rather a lot of doing on the part of Opposition Members—and indeed Labour Members—to persuade her to do so. [Interruption.] One of my hon. Friends says from a sedentary position, “Kicking and screaming.” That is what I, too, recall about the incident.
Earlier, I made an intervention about nationality discrimination rules within the civil service. If new clauses were to be introduced, would the Conservative party support them in principle, bearing in mind that it has adopted that position in relation to my many attempts, made through private Members’ legislation, to deal with the matter?
I see no reason why we would not adopt an approach similar to that which we have taken previously. I have not considered that exact point, and I would need to look at the hon. Gentleman’s amendments, but he might recall that—this is my recollection—we made a distinction between civil service roles that clearly require a nationality qualification, because they are sufficiently high-ranking or linked to security or defence, and those that do not. That seems to be a sensible way to proceed, and I look forward to seeing his amendments in due course.
I seek some clarity about the theme raised by my right hon. Friend the Member for Sheffield, Brightside (Mr. Blunkett). The hon. and learned Gentleman will know that there is much alarm in Whitehall about some of the utterances from Conservative Front-Bench Members about their intentions for the civil service. In particular, it is believed that people are being told that business people will be imported, through political appointments, to give orders to civil servants. Will he say categorically that that is not the case?
That is complete rubbish. The hon. Gentleman should be wary about listening to all the copy churned out by propaganda departments—in his own party, I suspect. His suggestion is ludicrous. In view of my earlier answer about the politicisation of the civil service, I hope that our proposals for the civil service will include ensuring its impartiality. Putting it under political direction or outside control clearly cannot achieve that.
On transparency, the Bill proposes only to reform Supply estimates. We think that there needs to be a fundamental shift in the transparency of government, and at our party conference we outlined a number of proposals to increase openness, including publishing online the salaries of the 35,000 most senior civil servants, job descriptions for quangos, and all central Government expenditure over £25,000. We would like the Bill to include such measures, and will return to them in Committee.
We support measures to require the consent of Parliament before the ratification of treaties, but I am concerned about provisions in the Bill that would allow the Government to avoid the new scrutiny requirements in undefined, exceptional circumstances. We will need some clarification of what those exceptional circumstances, which are so neatly tucked into the Bill, amount to. It is troubling that the Bill does not cover treaties that do not require formal ratification, other forms of international agreements such as memorandums of understanding, or even such things as prisoner transfer agreements. Although there might be arguments for that, I hope that in Committee we have an opportunity to consider carefully where the boundaries are drawn. Otherwise there might be much disappointment that many things that this House ought to be considering are not being considered.
The Government were elected on a false prospectus: they promised to put the Lisbon treaty to the British people.
It’s your memory.
I get ever more worried that we are moving into an Orwellian phase. I remember it as a distinct election pledge. Again, however, if the Secretary of State would like to write to me explaining why my suggestion—that that promise was made during the last election—is inaccurate, I will be only too happy to read the letter.
We support the repeal of restrictions on protests around Parliament. The right to protest is a fundamental part of our democracy, but that right needs to be balanced against the need to ensure that hon. Members, parliamentary staff, and above all the public, have access to this place. It is right, therefore, that the Bill ensures that protests can be regulated.
I am grateful to the hon. and learned Gentleman, because I did not think that my memory was playing tricks. We said in the manifesto—[Hon. Members: “Here we go!”] Well, I am reading it, in the interests of greater accuracy. After stating what the constitutional treaty will ensure, the manifesto reads:
“We will put it to the British people in a referendum and campaign…for a ‘Yes’ vote”.
The Conservative party is trying to say otherwise, but there is a world of difference between that constitutional treaty, which hit the dust, and the Lisbon treaty. That latter is simply an amending treaty to existing treaties, and no different in character from Maastricht or its predecessors, which the Opposition never put to the British people when they were in power.
I am sorry, but that piece of casuistry takes some beating—[Interruption.] It was casuistry! First, I remember the Government telling us, when those utterances were made, that the constitutional treaty was no more than another Maastricht. In fact, as the Secretary of State well knows, the Lisbon treaty is, in almost all its particulars, identical to the constitutional treaty abandoned after the French referendum. For those reasons, the public know very well that they were given a promise and that it was reneged upon. That highlights the difficulty with such legislation. How can people have any confidence that procedures of any sort will not be abused by Ministers who break fundamental pledges that appear to be made in manifestos?
We have made it absolutely clear that if there is an opportunity to have a referendum on the Lisbon treaty before ratification, we will do it. The Government promised to have a referendum on the Lisbon treaty not after, but before ratification. I hope very much that we can honour the pledge that the Government will have broken.
We support measures to remove the Prime Minister from the process of appointing judges, and magistrates from the very complex processes of the Judicial Appointments Commission. That seems to be a step in the right direction. I also say to the Secretary of State that I look forward to the review of the operation of the commission, and whether a simplified process could be provided. I listened very carefully to what he had to say about that. As I think he knows, he will have our interest and co-operation—in so far as we can clearly maintain judicial independence—if there are ways of improving the existing system.
We support measures to reform the National Audit Office and to amend Government accounts. However, with the Prime Minister’s once golden rules not just broken but shattered, surely the real problem lies not in disjunctions between departmental expenditure limits and resource accounts, but goes much deeper; it is one of fiscal credibility. That is why we propose an independent office of budgetary oversight to oversee compliance in connection with the Government’s economic promises.
Then we come to the House of Lords. Just to make our position clear—yet again—the Conservative party supports the creation of a predominantly elected House of Lords. But there is nothing about that in the Bill. It contains two measures that will fundamentally change the nature of the House of Lords, without making it one ounce more democratic. First, the Justice Secretary wants to remove the remaining hereditary peers. The Government agreed to the retention of the hereditaries as a mark of their good faith—good faith creeps into consideration of the Bill quite a lot—that further reform to put the House of Lords on a democratic footing would follow. It was said at the time that if those hereditary peers went, real reform would never happen—and it has not. As the late Member for Livingston, Robin Cook, said, all that has been achieved so far is to replace a 15th-century principle of hereditary peers with an 18th-century principle of patronage.
The Justice Secretary has made democratic reform of the House of Lords a fourth-term issue—something else for Labour’s manifesto. He promises a Bill on the House of Lords, which he says is imminent, so why is he trying to remove the remaining hereditaries in today’s Bill, before that Bill is published?
I wonder whether the hon. and learned Gentleman could clarify the confusing Conservative position on that point. There are increasing indications that if there was a Conservative Government, people would be appointed to the House of Lords so that they could become Ministers, albeit perhaps temporarily, as suggested by the hon. Member for Chichester (Mr. Tyrie). Why is that step being resorted to if the Conservatives’ clear intention is to legislate immediately on reform of the House of Lords? I suspect that it is not their intention.
Well, Parliament can legislate in a day; the hon. Gentleman is absolutely right to pick me up on that. How many times have we legislated in a day, and always regretted it bitterly afterwards? We have usually regretted it most bitterly when we have all agreed on something. I still remember a dreadful piece of legislation that we passed after the Omagh bombing; fortunately I was able to get leave of absence to disappear and not support my party. That was a dreadful piece of legislation, but everybody signed up to it and it went through in one day. However, wisdom suggests that we should not legislate in a day.
Reality also says that were we to be elected to government, we would have considerable problems in respect of our representation in the House of Lords, as would other parties, because of the age profile of our party’s membership and because of the paucity of appointments that have been made available to us over recent years. Those are factors that we cannot ignore. For those reasons we would have to make the House of Lords operate. I hope that that answers the question asked by the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith).
Let me press the hon. and learned Gentleman on the right hon. Gentleman’s point. All three parties are signed up to reform of the House of Lords, to put it on a wholly or mainly elected basis. The hon. and learned Gentleman just repeated that pledge. Will it be a pledge that any future Conservative Administration would implement in their first term, bearing in mind that the legislation would be pretty straightforward? [Hon. Members: “You’re on your fourth.”] What we have achieved since February 2007 is a clear consensus and lots of complicated detail, which were not there before. Now that the hon. and learned Gentleman has the template, will he implement it?
We have made our commitment and made it quite clear. The order in which we decide to prioritise legislation if we win an election is a matter for my right hon. Friend the Leader of the Opposition, particularly in view of the economic mess that we are going to inherit. Yet again, the Secretary of State is descending into a series of nitpicking issues—
If I may say so, it is nitpicking, particularly coming from the Secretary of State, given the Government’s consistent pledge over a long period to get rid of the existing House of Lords and complete its reform, and their not having completed it, or even started its completion. I am prepared to take lessons from some quarters, but on this issue I am not prepared to take them from the Secretary of State.
Of course the remaining hereditaries are an anomaly, and of course they are undemocratic. I accept all that, but they are no less democratic than the appointees who will replace them. Furthermore, why are there measures in the Bill to allow peers to resign or retire? Are those measures intended for the reformed House or are they supposed to cover the transitional House, or are they for the halfway house that we have at the moment?
Remove the anomaly—that is, the hereditaries—and the prospect of reform will recede. Only last year, the Prime Minister said that there would be no by-elections among hereditary peers during the transition to the fully reformed second Chamber, but that transition has not yet begun. Only last year, he said that he would avoid gratuitously cutting the Conservative party’s representation in the House of Lords, but now that stance is being reversed. As I have explained, although Conservatives are only the third largest grouping in the House of Lords, more hereditaries are Conservative than belong to any other party.
The Prime Minister’s naked partisanship in those utterances is laid bare for everyone to see. The proposals are not about making the upper House more democratic or more representative, but about shifting the party balance still further in favour of the governing party. Frankly, that is a pretty dangerous and unwelcome precedent, but one that ties in with the entire way in which the Prime Minister has treated Opposition parties over the House of Lords since he took office.
This is a question of trust. The Secretary of State’s predecessor Lord Irvine made a promise—I remind him of this, as he referred to Lord Salisbury and all those great moments in the first Parliament after 1997. What did Lord Irvine say? He talked about
“a compromise…between Privy Councillors on Privy Council terms and binding in honour on all those who have come to give it their assent.”—[Official Report, House of Lords, 30 March 1999; Vol. 599, c. 207.]
One of the people who participated in that assenting process, as it were, was the Secretary of State for Justice. He was one of the Privy Counsellors who gave his assent to that compromise, and so was the Prime Minister.
The Prime Minister has broken his promise on the Lisbon treaty and now I think that he proposes to break another promise. I therefore ask the Secretary of State again: why should we see the proposals as a way of restoring public trust in the political system? I want proper reform, but the relevant clauses make this less likely, not more likely. For that reason, we will oppose the measure to prevent hereditary peers from being elected.
I do not want to see life peers in this House either. The Secretary of State is right that under the Peerage Act 1963, peers who swiftly choose to forgo a hereditary peerage should be free to stand for election to this House, just as it is right that peers who were removed in 1999 should now be free to seek election here. If Parliament allows the House of Lords to expel Members for misconduct, they too should be free to argue their case in public and, indeed, stand for election to this House, because their peerages will effectively have been removed.
However, the position is very different for those who have chosen to accept a life peerage in the full understanding that they will forgo the opportunity of standing for, or for that matter returning to, the House of Commons. In a reformed House of Lords, that would lead to that House becoming a stepping stone to a career as an MP—and in an unreformed House, it would put the Prime Minister in charge of that stepping stone and vastly increase his patronage. That step would turn the House of Lords into the departure lounge for special advisers.
Yet again the Justice Secretary, who as I recollect went from arch-Blairite to the present Prime Minister’s campaign manager, finds that the tectonic plates are shifting, when suddenly such proposals come up. I suspect that whichever way he looks is uncomfortable: one way lies Foy in the county of Herefordshire and the other way Hartlepool in the county of Durham. So let me make it easier for him. We will table an amendment to give effect to the Government’s policy on the issue. I look forward to the Secretary of State, and perhaps even the Minister of State, joining us in the Lobby on that.
In his White Paper last year, the Justice Secretary proposed a cooling-off period of five years between someone ceasing their membership of the second Chamber and their being eligible for election to the House of Commons. That would prevent membership of the second Chamber from being used as an immediate launch pad for a career as an MP. We support the Justice Secretary’s policy on that, although his Cabinet colleagues do not seem to be very enthusiastic.
There is much in the Bill that we can support, but what we have is trimmings and not very much meat. What is missing is genuine constitutional reform and the transfer of power to the people, so let me make some suggestions of what the Justice Secretary should add to the Bill. My right hon. Friend the Leader of the Opposition has laid out a series of proposals that would really change the relationship between citizen and state. If the Justice Secretary is serious, he will follow our lead and introduce citizens’ initiatives and a right for local residents to veto excessive council tax rises, allow 100,000 voters to demand a debate in this place on any issue, let 1 million citizens table legislation in Parliament, and introduce a public reading stage for Bills.
The Justice Secretary could follow our lead and let local communities elect police commissioners or give voters the right to recall their MP where serious misconduct has taken place, regardless of any penalty imposed in the House. If he really wants to improve the audit of Government accounts, he might like to start by publishing every item of Government spending over £25,000. He would be amazed at the number of people who would spend hours trawling through those accounts to supply their MPs with ammunition with which to ask questions. And if he is serious about public engagement, will he follow our lead and ensure that any treaty to increase the powers of the European Union will be subject to that referendum?
The British public have had plenty of broken promises from this Government. They certainly want reform. The evidence from opinion polling shows that this place is held in very poor estimation generally, and that there is a deep desire to see our legislature function properly and for confidence in the way in which government is conducted to be restored. We will give the Bill its Second Reading, but if the Secretary of State thinks that these measures alone will restore that trust, I have to say to him that he is deluded. That is not something that I would ever say of him, however, because I think that he knows the reality very well. He knows that, at the moment, our political system is broken up, and that this Bill does not begin to scratch the surface of the change required—because I am afraid that the Prime Minister will not let him do that.
I was interested to hear my right hon. Friend the Secretary of State begin his speech by telling us that Her Majesty was pleased to allow the House to consider the prerogative powers, as it will do in parts of the Bill. I was interested, too, to see that just a few days ago, the Government issued a paper called “Review of the executive royal prerogative powers: final report”. The Select Committee that I chair asked for that report in 2004, and it is good at last to have a comprehensive account of what we think those prerogative powers are. It gives us an agenda for much work. At the end of that interesting paper, we find this sentence:
“Our constitution has developed organically over many centuries and change should not be proposed for change’s sake.”
That sentiment is often echoed throughout our political tradition across the House, but we have only to say it to ask ourselves whether it is true.
It is certainly true that, for the past three centuries or so, we have not had what we might call a great constitutional moment. We have not had a moment when we have had to consider what kind of system of government we would like. We have been spared the kind of revolutionary moment, or moment of foreign occupation, that necessitates constitutional moments in which that process has to take place. So, as is often observed, we have more or less muddled along, making it up as we go along. We have taken what is sometimes called a back-of-an-envelope approach to constitutional matters.
I am not sure, however, that the process has been quite as organic as that sentence in the report suggests. We have had some pretty inorganic moments, too. I do not think that the vote to get suffrage for working men was an organic moment. That involved a pretty titanic struggle against the people who said that our constitutional system would collapse if we went down that route. I do not think that the struggle to extend the franchise to women was an organic moment, given that people said that our constitutional system would collapse if we did anything so dangerous. Nor do I think that the struggle against the House of Lords to assert the supremacy of this House at the beginning of the 20th century was an organic moment. That involved a pretty vigorous constitutional struggle to assert a new primacy in our political system. So we should not get too carried away with the idea of an untroubled organic process. There are moments when we have to do things that change the balance of the system, and that usually requires significant political action.
I am not going to claim for an instant that this Bill represents such a moment. Seen from a broader perspective and taken in the round, however, the measures that the Government have taken since 1997 represent an extremely important constitutional moment. I am not going to recite them—my right hon. Friend mentioned most of them—but there is no doubt that, over this period, something very important has happened to our established constitutional arrangements. I do not think that that has been part of a grand plan, or that there has necessarily been a consistent sense of direction, but there have been some important achievements.
The reason we are having all the troubles with our expenses at the moment is that we introduced a Freedom of Information Act. As long as we had no such provision, we thought that we could do things in secret. The introduction of the Act has had a transforming effect on our whole political culture, and, indeed, on the way we do business in this House. Some might say, “That is not a very good thing; look at the consequences.” Had we had such legislation in place, however, the trouble that we are now in would never have happened. If we had had the complete transparency over our expenses that freedom of information brings, and if we had known that we had to submit our expenses to the scrutiny of our electors and everyone else, the difficulties and abuses that we have seen would not have taken place.
In area after area, we can see how these important changes have altered the way in which government is organised in this country, and the way in which we do politics. There will be a lasting imprint from this period. People will look back on it as a moment of significant constitutional change. The implications of the Human Rights Act 1998, for example, are transforming—so transforming, in fact, that the Opposition would like us to have another one. Indeed, perhaps the Government would, too.
The most remarkable thing about all this constitutional reform is how it has become accepted and settled—even provisions that were strongly contested at the time. I remember John Major, when he was Prime Minister, predicting that the House would come down if we moved in the direction of serious devolution. It was a political necessity, however; the system had to respond to the pressures, particularly from Scotland. This has changed the way in which we do politics.
It is remarkable that no one now seriously wants to undo what has been done. No one is queuing up to say, “Let’s sweep away the Freedom of Information Act”, “Let’s sweep away devolution”, or “Let’s sweep away the independence of our national statistics.” All these things are now an accepted part of our political arrangements, and they are all for the good. Not even the Conservative party, in its more esoteric moments, has suggested that any of these measures should be unravelled. We should therefore at least mark the fact that, although the Bill itself might not be momentous or represent our great constitutional moment, it forms part of a significant constitutional journey over the past 12 years.
Yet again, my hon. Friend is making an intelligent, interesting speech, and everything that he says is absolutely right. However, the key development in recent decades—not just under this Labour Government—has been an intensification of power at the centre, relative to the legislature. That is what is wrong with our politics, and that is what we have to change. The Bill ought to be addressing that, and I hope that he will say something about it.
My hon. Friend tempts me to go wider than I am already going, and I think that I am going quite wide enough. Some little plans are being hatched to do something else about the balance between Parliament and the Executive, however, and I hope to be able to say more about them in the near future.
Against that background, I want to extend a particular welcome for what I take to be the central part of the Bill. It is an issue that I have been engaged with for as long as I can remember—probably too long—which is to try to put the civil service on a statutory basis. The Committee that I chair produced its own Bill to do so in 2004. I think that was the first time in the modern period that a Select Committee has produced its own Bill. We did so because we had become frustrated by our inability to make progress on the issue. It was something that had been much promised, but never delivered.
Everyone had accepted the arguments for putting the civil service on a statutory basis. They grew out of Northcote-Trevelyan and it was viewed as an anomaly that this had not already happened. Northcote-Trevelyan had suggested that we needed only a few clauses to do it, but those few clauses never seemed to be put in place. I read my way through all the debates on the issue under the last Conservative Government, when the old Treasury and Civil Service Committee used to recommend that this should be done. The argument then was, “Well, we think this may be a good idea in principle, but we have worries about doing it.” Some of those worries were very proper ones: it was said that the change should not be done in a way that would become a source of controversy between the parties and that it should be done only if political consensus could be gained. It was in the same spirit that the civil service itself approached these issues. It wanted this done, but it wanted an assurance that it would be done in a spirit of political consensus.
I take some pleasure in the fact that, after all this time, we have now reached a point where this can safely be done for the civil service. We can safely do it on the basis of genuine consensus across the parties. What we are doing is something that everyone understands we ought to do, which is to try to define what we think the core values of our civil service are and to put them into statute, as we have done with other things. Secondly, we need to put into statute the core institutional machinery necessary to ensure that those values are delivered. That is the key point about the Civil Service Commission.
This may not seem to be an exciting moment—indeed, it may seem a prosaic moment in the scheme of things—but it is constitutionally an extremely important moment. I very much want this Government to have this reform as one item on the long list of actions they have taken to change the operation of government in this country. With a bit of luck and a fair wind, they will achieve that. That is my main welcome for the Bill.
Let me share another rather general thought, which is that I do not know whether we are approaching a time that could be described as a serious constitutional moment—one in which we want to examine in a more fundamental way how we are governed—but I doubt whether we can go on for ever simply making it up as we go along. I shall not resort to the cliché that every disaster is an opportunity, but there is perhaps a moment that arises out of the catastrophe that has overwhelmed this institution of Parliament, which has got people to begin to think, talk and discuss how they want to be governed—whether they are governed in a satisfactory way and whether it can be improved. Such a discussion is happening on a number of fronts.
Shortly after I entered the House, I remember trying to introduce a Bill on fixed-term Parliaments, but I could not get a hearing for that proposition. Another prerogative power was involved; I recall being much taken by the fact that I had to write to the Palace to get permission to introduce a ten-minute Bill on fixed-term Parliaments. Now, however, it is becoming accepted that it is right to move in the direction of having fixed-term Parliaments. It is increasingly viewed as absurd that nearly every other Parliament operates to some fixed cycle, but our Parliament does not.
The argument that we need to examine our electoral system is being heard with greater force now—and not necessarily for the old reasons. Arguments about strict proportionality or the mathematics of voting are less relevant; the important thing now is that the electorate has changed. The first-past-the-post system, with all its rough edges, did not matter very much when, on the whole, there were defined blocks in the electorate that delivered their votes for parties and took their turn now and again. The electorate is not like that now; it is far more differentiated and variegated. Governments may be elected now on the basis of a very small minority of the vote and yet enjoy all the power that is accorded to Governments in this country. At some point, we have simply got to address that issue because when our circumstances change, we have to revisit our arrangements.
Beyond all that, I hear a developing argument these days that asks whether we need to revisit some of the fundamentals of our governing arrangements. There is far more interest now in whether we should begin to separate out more clearly the Executive functions from the legislative ones. It was interesting to see recently that a former Cabinet Secretary, Lord Turnbull, had written an article in the Financial Times advocating the separation of powers as the only way he thought we could get the skills that we needed into government and also provide the sort of parliamentary scrutiny that was needed. The fusion of power in our system is damaging on the one side, but also damaging on the other side.
It is interesting to see that even Prime Ministers nowadays want to push out the boundaries by bringing more people in from outside. We have heard in exchanges this afternoon about proposals to bring people into government who may not have to be members of either House of Parliament or even to be elected. It is suggested that such people can come and be Ministers for a while. It may be a good idea. The Committee I chair is looking at some of these proposals at the moment, but if we go down that route, we have to think it through. If we are changing the nature of the Executive, we may want to change the nature of Parliament, including its scrutiny function. The principle should be that strong Government, which is what we all say we have had in this country—and in many respects, we have—has to be matched by strong accountability, but we have not seen that.
My conclusion from all this is that interesting discussion and argument is going on about the very nature of our system of government. My view is that we need some mechanism to carry all this forward. When the Government came to power in 1997, instead of simply working through our shopping list of reforms, we should have had something like a constitutional commission, which could have looked at all the parts of the argument in the round, ensuring that one bit was consistent with another, while also providing a reservoir of expertise on constitutional matters. It could even have engaged the public—an issue I feel even more strongly about now.
It is no good simply having discussions or putting forward ideas about how the system could change; if we are approaching a constitutional moment, we must have a mechanism to carry it forward that engages the public, too. I would favour something like a democracy commission. I know that we are busy abolishing every body in sight at the moment, but we need a place in our system—other countries have it—where we can think about the nature of our governing arrangements on a continuing basis. If we find ourselves arriving at a moment when we will have to make some big constitutional choices, we would then have some means of doing so.
I agree with the vast majority of what the hon. Member for Cannock Chase (Dr. Wright) has just said—except for one thing. I think that we are already in a constitutional moment and that the current crisis is very serious, requiring a better reaction now than this Bill. I am afraid that it is inadequate to the present circumstances. There is nothing in it specifically bad or obnoxious, but nearly all of it needs improvement—some of it radically. What is really wrong with the Bill, however, is what it does not do and its lack of ambition, given the size of the problem. As the hon. Member for Cannock Chase pointed out, it does nothing to change the system of election to the House of Commons, which is not just corrupt and unfair but, as the hon. Gentleman began to explain, politically disastrous. It fails to get rid of the undemocratic absurdity of a wholly unelected second Chamber—a House of patronage—and, as the hon. Member for Luton, North (Kelvin Hopkins) said in an intervention, it fails to do anything about the extreme centralisation of power in this country, which still remains after the devolution settlement. It fails to do anything to prevent big money control of our politics, and it even fails to remove the possibility of political interference in the criminal justice system.
There is a real crisis in British politics, but although all of us in the House know about it on a personal level, we do very little about it. It is a crisis of confidence in politics that threatens the cultural basis of democracy itself. Extremist parties are attracting support, and cynicism about politics and the people in politics is rife. I believe that confidence in Members of the House of Commons is now down to 14 per cent. The media are the only real political power in the land, but the media’s own commercial difficulties mean that they use that power for increasingly shallow populist ends.
Over the past few weeks, I have been wondering whether the position is even worse than that. We live in a society that is obsessed with celebrity, and what we now see is the growth of an expectation that politics is, or should become, a kind of celebrity activity. We are seeing celebrity candidates for public office, not only in the United States but here. We are seeing TV celebrities elevated to ministerial office and places in the House of Lords. We are seeing political innovations, proposed or already in place, which, while they may appear superficially attractive, are in danger of turning into concessions to celebrity politics. Primaries, I believe, involve that danger; leaders’ debates involve that danger; and elected mayors involve that danger—although I should perhaps add that the newly elected mayor of Bedford won his place without being a celebrity.
The serious question is, are we allowing a new system of government to develop out of the constitutional moment in which we find ourselves? Does the system that we are allowing constitute a kind of rule by the famous? The new system needs a name, and were we to give it a name it would be not a democracy but a doxocracy: the rule of celebrity. A new and urgent constitutional question about which the Bill does nothing is what we should do about that form of politics. One view is that we should simply go with the flow, give in to the celebrity politics that is developing and institutionalise its elements, such as primaries; but I believe that that will not end well. The sheer superficiality of celebrity politics will lead in the end not to greater engagement as its proposers hope, but to disappointment and to even more cynicism.
I am sure that, like me, the hon. Gentleman regularly visits schools, and that, like me, he is pleasantly surprised at how interested young people are in politics—not party politics, perhaps, but issue-based politics. What they always tell me is that they have a thirst for knowledge: they want to know more about what we do in Parliament, and about what Government do. Does the hon. Gentleman agree that that is where we fail absolutely in this country? We have not engaged in real citizenship education at all.
I do agree, but that is a consequence of the great boundary that we have developed between people in politics and people not in politics. I believe that the position will become worse if we follow the celebrity politics route, along with the assumption that being in politics means having to be a different kind of person from everyone else.
The hon. Member for Cannock Chase mentioned the expenses crisis. I think that we need to mention it, but one of the aspects of it that strike me as dangerous is that, just as celebrities in show business are expected to have some kind of physical perfection, political leaders are now increasingly expected to have moral perfection, and that is simply impossible. We are not gods; we are only people. In both forms of celebrity, we have developed a form of airbrushing. Photographs of celebrities are airbrushed, and before freedom of information we airbrushed what we were doing here. Exposure of that has, I believe, been fundamentally damaging. The alternative approach is to reject the whole idea rather than going along with it, and to aim to tear down the barrier that I see developing between politics and people outside politics. That is a difficult route, however, because it is one that the media would automatically oppose.
I am following the hon. Gentleman’s interesting speech carefully. I do not think that he meant that the exposure of expenses itself had been damaging. It is what has been exposed that has been damaging. I share, as I am sure he does, the view of my hon. Friend the Member for Cannock Chase (Dr. Wright) that, although this has been a very difficult period, we could not go on as we were.
I thank the Secretary of State for correcting me. What I meant was that we had been airbrushing the situation and that that had been exposed, quite rightly. We should not have been airbrushing it along the way.
What we need to do is think about how to persuade more people to participate in politics in order to break down the barrier—not just in the sense of having their views heard, although that is very important, but in the full sense of having responsibility for decisions and taking part in them. That means a decentralisation of power far more radical than what we have taken on so far. It also means putting barriers in the way of those who wish to control politics through money, which is incompatible with a democracy in which many people take part on an equal basis; and yes, it does mean representative bodies that reflect the political views of the people who are represented. The Bill does not address that either.
The hon. Member for Cannock Chase was right to mention electoral reform, which is central to change in politics and, in particular, to the changing relationship between people in politics and people outside politics. A House of Commons that simply does not reflect the political views of the population will never command much respect. We have involved ourselves in the idea that the only purpose of a general election is to choose a Government. According to current doctrine, a general election is not about reflecting the political views of the public. The trouble with that view is that it loses all credibility when the winning party wins barely over a third of the votes. When the supporters of the Government are outnumbered by nearly two to one, it is not surprising that the Government are unpopular from the day on which they take office, remain unpopular after that, and are seen by the population as being alien to their own political views. We have to move away from the present system.
It is said that first past the post at least allows us to get rid of the rascals, but there is a fundamental problem with that. It allows us to get rid of an individual rascal, but only by voting for a party with which we may fundamentally disagree. The cry “Throw the rascals out” therefore cannot work simultaneously for individuals and for parties. The system fails because it is trying to do too much at once.
We also need to get rid of the idea of safe seats, because it is safe seats that lead us down the path to iniquity. We need competition, but we need a system that allows competition and allows the number of safe seats to be reduced, but does not allow us to give up the idea of the proportionality of the entire electoral system to public views. There is such a system: the single transferable vote multi-Member seat system. It puts power in the hands of voters, not party machines. Interestingly, in Ireland 40 per cent. of Teachda Dalas who lose their seats lose them not to members of other parties but to members of their own party. The whole point of that system is that it is possible to throw out individual rascals while retaining general proportionality and support for parties.
I do not think it is a good idea to discuss this in detail now as the jury is still out. [Interruption.] Yes, the Speaker of the Dail is probably not the best person to talk about in these circumstances.
It is noteworthy that in the Bill the Government have completely ignored all the problems to which I refer and fail to engage in the debate. The Government’s own proposals on reform of the electoral system of the Commons are mysteriously absent from the Bill. There was a proposal, which the Secretary of State has discussed, for the possibility of recall of existing Members of Parliament—a proposal that the Government stole from us. That proposal is not in the Bill. The Secretary of State has explained that it is very difficult to think about and that it will take some time. I do not think it is particularly difficult, however, and I believe we can get a move on with it if there is sufficient will and open discussion among the parties.
The Prime Minister recently put forward the proposal to hold a referendum in the next Parliament on moving to the alternative vote system, but that too is not in the Bill. The AV system is not a wholly proportional one. It can produce some rather eccentric results, but at least it is a preferential system, so from my party’s point of view it is arguably a step in the right direction. The question the Government must answer is why that is not in the Bill. It is not a complicated system for them to design. I just put this thought to the Government: if provision in this Bill for a referendum in, let us say, autumn 2010 were to pass into law, it would be very difficult indeed for an incoming Government of any other party to repeal it in time to stop it happening, so why do the Government not include such provision now in this Bill?
The position in terms of the House of Lords is similar. If the Secretary of State is right—which I think he is—that Members in all parts of the House accept that we should move to a predominantly, or, as we would prefer, a wholly, elected Chamber, why do we have to wait until the general election to make a start on that? The Secretary of State says we need all parties to put that proposal in their manifesto as that is needed to overwhelm, in some kind of argumentative way, the obstruction of those in the other place who do not wish there to be any change. I cannot see how that is so. They already know the positions of the parties. They all know what will happen at the next election. It is inevitable that there will be the result that the Secretary of State talks about, so what is the point in waiting? Why do we not now try—we might not succeed—to include in this Bill a move to a more democratic, or a wholly democratic, House of Lords, which an incoming Government from another party would find very difficult to repeal? We have heard, however, remarks from Conservative Members that imply a certain amount of delay. I think we should be acting now, in this Bill, to make sure that such delay is not effective.
The hon. Gentleman is ranging widely on the omissions from the Bill. Does he agree that another omission is the failure to overcome the lack of fairness shown to British citizens who vote when they happen to be living, either temporarily or permanently, overseas? We are now one of only four countries in the whole European Union that have restrictive rights that disfranchise millions of our citizens overseas. Should not those people be taken care of in this constitutional reform Bill?
I would not argue as broadly as the hon. Gentleman does, and this might not be the right Bill in which to address that issue, but I think there is a problem, especially in terms of British citizens who work for international organisations, who seem to be discriminated against in an unfortunate way.
I wish to pick up on a couple of specific points. We are well aware that there is a specific problem for British citizens who work for international organisations. We are looking at it, and we hope to be able to make some significant progress. It is quite complicated, however, not least because given the vast number of such organisations, there are issues about whether they should all be included. I accept that there is an issue, however, and we are considering it.
Turning to the point made by the hon. Member for Ludlow (Mr. Dunne), he well knows that the House has regularly looked at the voting restrictions placed on British citizens who choose to live overseas. Of course most of them are able to vote in this country, but if they stay outside the country for longer than a specified time, restrictions apply, as they do elsewhere as well. The hon. Gentleman therefore has not quite got that right, and I shall write to him to correct his misunderstanding.
I thank the Minister for that intervention, and especially for his initial comments, which amount to considerable progress on an important issue.
Let me make one final remark on the House of Lords. I would not want an opportunity for real progress to be thrown away because the Secretary of State is inherently conservative and the Conservative party is hesitant and wants to impose a first-past-the-post electoral system on any future elected House of Lords. That would be a disaster given that we could be making real progress.
There is an enormous amount to do in terms of the centralisation of power, but for now will the Government not at least commit to some small concessions? One thing they could do is implement the original intention of the Sustainable Communities Act 2007, which was that local government would be able to require central Government to declare what central Government spend in a local area so that negotiations can then take place on what should be done with that money. I gather that what is currently happening is that central Government interpret that Act as meaning only that central Government tell local government what local government are already spending, which of course completely undermines the whole process. Cannot the Government simply reverse their control-freak stance—which they revealed yet again last week—on the internal governance of local authorities which forces them to choose between a limited range of unsuitable Whitehall-based Government structures?
The draft Bill included extensive provisions on removing the power of the Attorney-General to control decisions about particular cases—about whether a particular person should be prosecuted or not. In my view, it made unacceptable exceptions to that idea by talking about a national security exemption, but even this limited concession has now disappeared entirely from the Bill before the House tonight.
The Secretary of State has not really explained what has happened. The current situation is entirely unacceptable, and I notice that the Parliamentary Assembly of the Council of Europe is now of a similar view. It is unacceptable for a Government Minister—a politician—to have the power to undermine the prosecution of, or even to decide to prosecute, individuals in particular cases. We all know about the controversy regarding the BAE Systems case and so on, but I do not want to discuss individual cases; I just want to talk about the principle of whether a Minister should have that sort of power. The hon. Member for Cannock Chase mentioned the separation of powers, and this seems to me the most obvious instance where the principle of the separation of powers is being violated. Such decisions should be exclusively for professional prosecutors.
The hon. Gentleman raises an important issue, which I have always seen as one of fine judgment and balance. We asked both Houses to establish a Joint Committee on this Bill—that was in addition to the specific investigations being carried out by the Select Committee on Justice, the Public Administration Committee and others. The Joint Committee on the Draft Constitutional Renewal Bill, which involved both Houses and all parties, concluded that the legal and political role should be retained for the Attorney-General. It also said:
“Given our conclusions in Chapter 3, we question whether there is a need for legislation in respect of the Attorney.”
I accept that we must keep this matter under review, but I hope that the hon. Gentleman will at least accept that the reason why what was included in the original draft Bill is not included in this Bill is that we accepted a recommendation from the Joint Committee.
As a matter of fact, what the hon. Gentleman said is a big understatement. The Joint Committee had to produce a minority report, making it clear that a sizeable proportion of its members agreed with the reports produced both by the Select Committee on Constitutional Affairs and the Justice Committee. They both concluded that the current arrangements for the Attorney-General, whereby he has both a political and a prosecuting role, are unsustainable.
I am grateful for the hon. Gentleman’s intervention, because that is precisely what has happened. I do not think we should give way to a Joint Committee report that is plainly more reactionary than the centre of gravity of opinion in this House. It is possible to design arrangements so that there is a supervising Minister who has some say in overall policy on prosecution, but the idea that individual cases can be influenced by Ministers strikes me as being beyond the pale.
Let us consider the civil service aspects of the Bill, on which, like the Conservatives’ spokesperson and the hon. Member for Cannock Chase, I welcome the basic principle. There is, however, a minimalist feel to the way in which the idea of the “civil service Act” is being implemented in the Bill. What has happened to the idea, mentioned earlier in the debate, that special advisers should not be able to exercise Executive power and instruct civil servants? The Secretary of State says that there might be exceptions to that—I cannot think of any such circumstances that have led to good outcomes in the past. Even if there are exceptions, should not the Bill put in place the presumption that special advisers should not be able to do those things and provide for an open, transparent procedure—not an Order in Council—to make the exemptions clear and open in Parliament? Why should only selection into the civil service from the outside world—this is how I read the Bill—be subject to open and fair competition and merit? What has happened to the idea that promotion within the civil service should also be exclusively by merit and open competition? On a lesser but still important point, what has happened to the provision in respect of GCHQ, which was included in a previous draft of the Bill but has now been lost? Finally, and crucially, why does the Bill contain no legal duty on Ministers to respect civil service impartiality?
The treaty ratification aspects of the Bill have been discussed extensively, but the conclusion that I have drawn from examining the Bill and listening to the debate is that what the Bill provides for is almost purely symbolic; it is not a real change. That is because the Government—this is the central issue with which the Select Committee on Reform of the House of Commons, which the hon. Member for Cannock Chase chairs, is grappling—have a complete stranglehold on what we get to vote on in this House. If a purely negative procedure is to be used in respect of treaties, this House will never get to vote on a treaty when the Government do not want us to do so. What the Bill says about the House of Lords is that the Government can simply, by fiat, ignore what it says on a treaty. In any case, clause 23 contains a general get-out clause allowing the Government to evade the entire proposed structure.
It was my experience as Foreign Secretary, when I regarded it as offensive to this House and our democracy that Parliament had no formal, proper role to agree or to veto treaties, that led to this part of the Bill being laid before the House. This provision is not, in any sense, supposed to be symbolic. We are, of course, open to arguments as to how it could be improved, but I should say that never before has there been—as there will be if this Bill is enacted—power for this House properly to veto a ratification if it so judges.
I am glad that the Secretary of State is open to further suggestions—the obvious one is to move to use the affirmative system, as opposed to the negative procedure, in this House. That would at least ensure that a vote took place in this House, even if a debate did not.
The Bill is very disappointing on prerogative powers. The document that the Government issued last week is possibly the most complacent that I have ever seen come out of government. Basically, it lists the prerogative powers that are known to exist and then says, “Apart from one or two that the Government have already covered, there is nothing wrong with the present system and it is a very good idea that Ministers should have all these powers.” It simply makes a mockery of the Prime Minister’s promise to entrust
“more power to Parliament and the British people.”—[Official Report, 3 July 2007; Vol. 462, c. 815.]
Like the Secretary of State, I would have much more strongly preferred to see something concrete about war powers in the Bill, rather than merely a proposal about consideration of a draft resolution of the House. That was rightly described by the Public Administration Committee as leaving
“too much discretion in the hands of the Prime Minister.”
The Bill contains nothing about the Dissolution of Parliament and nothing about many of the other powers listed last week. Crucially, it contains nothing about the power to appoint the Prime Minister, which remains in the mysterious official channels of ways and means. That is not acceptable in modern democracy; this House should openly elect our Prime Minister, after a general election. The prerogative is simply arbitrary power dressed up in mediaeval clothes, and it is a means for the Government to avoid democratic scrutiny. We should be discussing a general provision to shift all prerogative powers on to a statutory basis or to this House, and the Government should have to argue for any exceptions to that.
May I just briefly mention the public order provisions, because I was disturbed by part of the debate about that earlier? I am happy that the provisions that exist now on protest near Parliament are being repealed, but the Bill replaces them with a regulatory regime that could be abused. I am thinking about, for example, the power at large to confer discretions on senior police officers and the power to impose a limit on the maximum number of protestors without there being any limit to that power. When this Bill reaches Committee we will need to examine carefully what those provisions are meant to do and, if necessary, restrict their remit.
On the judiciary, as the Secretary of State said, the effect of the Bill is to take the Prime Minister out of the loop on judicial appointments. I suppose that that is also largely symbolic, since the Prime Minister is replaced with the real power in the land—the power behind the throne all the time—the Lord Chancellor.
On human rights, I have no objection to tidying up the anomalies to do with the devolved Governments. However, if the Government are in a frame of mind to tidy up the Human Rights Act 1998, I urge them to consider not only the Bill promoted by the hon. Member for Hendon (Mr. Dismore) on foreign civil servants, which he has mentioned before, but, rather more importantly, his Bill on human rights, which would ensure that Government contracted-out services, which are only technically in the private sector, are included in the scope of the Human Rights Act.
The financial provisions of the Bill on the Comptroller and Auditor General and the National Audit Office are mostly harmless, but there is nothing in the Bill to deal with the ludicrous lack of scrutiny to which the Government are subject in this House before they spend public money. Our method of scrutiny takes place almost entirely after the fact. We in this House have less say in advance of Government spending than a parish council does about what that council spends. Since the reality of politics is that expenditure is policy and policy is expenditure, we are reduced to merely a spectator in government. It seems to me that serious reforms are required to the way in which Parliament relates to the Government on money issues. The Bill, as it does with so many other issues, simply tinkers lightly with the far edges of a very serious problem.
A Second Reading debate is supposed to be about the principle of a Bill, and the principle of this Bill appears to be to do as little as possible about as much as possible in a limited way. The big issues that face us about the legitimacy of the political system and the future of our democracy have been ignored. If I am right that we are already in a constitutional moment—in a serious political crisis—that is simply an inadequate response. I urge the Government to think again about what they want to achieve through the Bill and about whether it is right to introduce such a pathetic little Bill at this stage and carry it over into the next Session. It might be a better idea to take the whole thing away and to return in the next Session with a serious attempt at reform.
It is always a pleasure to follow the hon. Member for Cambridge (David Howarth). I do not share his pessimism that we are in a huge political crisis. Although aspects of the public’s confidence in this House and the conduct of its Members have been affected, I do not think that it is a huge constitutional crisis. I hope that by the end of the debate we will have cheered him up and shown him that some good work has been done in the past 12 years.
I begin by declaring an interest as a non-practising barrister.
This is the first debate on constitutional affairs since the Minister of State, Ministry of Justice, my right hon. Friend the Member for North Swindon (Mr. Wills), announced that he will step down at the next election. It is right to pay tribute to him for the work that he has done in this area of policy. He has always been extraordinarily passionate about constitutional affairs. I was delighted when he chose Leicester as the first city to visit on his roadshow. I am not sure how many other places he visited—[Interruption.] Lots, he tells us. It was great to have him in Leicester and I hope that it gave him a flavour of the willingness of the people of Leicester to engage in this great constitutional debate.
The Lord Chancellor is absolutely right that this has been a breathtaking 12 years of great changes to our constitution. We have seen devolution and the creation of the Supreme Court, as well as changes to many other aspects of constitutional policy. The Government should be commended for what they have done. However, I am a little disappointed by the Bill—a disappointment I share with the hon. and learned Member for Beaconsfield (Mr. Grieve). I had expected, as the Bill has such a grand title, that it would have more to it than the measures that the Lord Chancellor told the House about in his speech. It is like opening the fridge on a Monday morning and finding that all the best bits have gone. Perhaps we have legislated our way into constitutional history and there is nothing left to do, but I had hoped that there would be more in the Bill, because there is still more to do. Perhaps, as we are only five months away from a general election—as fixed a term as is possible, because we know that the election will happen next year—the Lord Chancellor feels that he should keep his best bits for the manifesto and for the fourth term, should the electors of the United Kingdom re-elect this Government, as I hope they will.
It is right to pay tribute to all three Lord Chancellors in this Government—to Lord Irvine; to my former boss when I was a Parliamentary Private Secretary at the Attorney-General and Solicitor-General’s Department, Lord Falconer; and to the current Lord Chancellor. They have been serious about the need for reform and change, and it is important that we recognise that although the Bill might not be the Bill that we would have liked at this stage, it is part of that process.
Let me pick up on two or three aspects of the Bill. I hope that the Lord Chancellor will follow it through in the spirit in which he introduced the Second Reading debate. I have known him now for 30 years, and I know that when he says that he is willing to engage in debate on issues he will do so. The way in which he has dealt with interventions from right hon. and hon. Members and from Front Benchers shows that he will be willing to engage in such debate in Committee.
I was interested by the suggestion proposed by the hon. Member for Cities of London and Westminster (Mr. Field), which appeared to have come from a pamphlet written by the hon. Member for Chichester (Mr. Tyrie), whom I have always regarded as one of the cleverest Members of this House. If he has written a pamphlet about the need for temporary peers, it will certainly be worth reading, and I shall rush off to the Library to do so. Let me take his pamphlet at face value, as it was described by the Lord Chancellor and by the hon. Member for Cities of London and Westminster. Its intention is to ensure that we appoint peers for a short period, whether or not they serve as Ministers. Such a provision should not be limited to people who serve as Ministers of the Crown; it should extend to those in a particular area of expertise, who could be appointed for a couple of years, as it would be unfair to put them in for a month and hope that they can master the intricacies of the way in which the other place operates.
I fully support the principle of temporary membership, especially as there appears, as the hon. Member for Cambridge has pointed out, to be no great difference among the three major parties about the need to make the House of Lords more democratic. I am not quite sure where we are on the percentages, but our position is that the other place should be almost wholly elected. I am not sure of the Conservative position, but I think that the Liberal Democrats are in favour of a wholly elected upper House. Given that there is not that much difference, and accepting what the hon. and learned Member for Beaconsfield said about our not being able to legislate in a day, the idea of temporary peers is a good one, especially if they are brought in to serve in a Government for a particular reason.
There is no reason why people should be in the other place for life—under the old terms of what life should be—if they are there for a specific purpose. That is why I welcome the proposals in the Bill to allow peers to resign. I do not think that there is a hidden agenda about any particular member of the Government or of the other House, but surely it must be right for a peer who wants to resign and to contest an election to the House of Commons to be allowed to do so. I am not clear whether that would affect the next general election. Perhaps the Minister of State, when he winds up, will be able to tell us. However, it would be pointless to introduce a Bill that allows peers to resign but then not allow them to do so and contest the next general election, if that is what they choose.
My second point has to do with judicial appointments. I take the Lord Chancellor’s point that removing the Prime Minister from the process would be a technical change, but I have been here long enough to know that the word “technical” can be used about matters that are a little more significant than that. I am not certain that the present Lord Chancellor has been in a position to make a recommendation to the Prime Minister, or whether the president of the Supreme Court was in place before my right hon. Friend took over, but I cannot believe that any serving Prime Minister would have told any of the past three Lord Chancellors, “I’m sorry, but I cannot accept your recommendation.” Certainly, I cannot believe that the current Prime Minister would say to the present Lord Chancellor, “Sorry, I don’t like your choices for president of the Supreme Court, or for the deputy president and other members. Please let me have some other people to choose from.”
I am worried that, once the selection process is complete, appointments are merely rubber-stamped. I do not think that they should be, as the appointment of these very senior judges must be accountable to Parliament. I served on the Constitutional Affairs Committee under the enlightened leadership of the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith). He and I, and the hon. Member for Chichester, were very keen to make sure that we had the judges in on a regular basis.
Yesterday, we saw how the pre-appointment process in respect of the Children’s Commissioner panned out. I am not sure how that process might have affected the appointment of the president of the Supreme Court, but I am sure that at some stage he would have come in to answer questions from members of the Constitutional Affairs Committee.
I am not saying that I want to go back to the previous system, in which one man or woman—a man, in the case of the present Lord Chancellor—selected every judge, tribunal president or magistrate. However, our current system has not impressed me with its ability to open up the judiciary in terms of diversity and gender, so I am glad that the Lord Chancellor has set up his review to look at how the Judicial Appointments Commission operates. I am glad too that the Opposition spokesman, the hon. and learned Member for Beaconsfield, has said that he supports the review, because it is important to see how the JAC has worked.
I am not very impressed with the JAC, in part because there is not enough feedback for people who apply for posts. By and large, the same civil servants who ran the system at Selborne House are running the present system. There has not been a mass recruitment of new people. I hope that those who serve on the Committee considering the Bill will probe Ministers about what is happening with the JAC. I do not want to pick a quarrel with the Lord Chancellor about removing the Prime Minister from the process, but he needs to accept the importance of accountability.
We simply cannot have members of the judiciary choosing themselves. There are lay members of the JAC, but they are likely to defer to a senior judge’s views on any appointment. The result will be that the same people will select themselves: sadly, that is what we have had in recent months, and that is why the overall balance of the judiciary has not changed.
I turn now to the public order provisions in the Bill. I am not sure what they are. The Lord Chancellor said that the present restrictions will be lifted, but that there are to be more restrictions. That will have to be probed in Committee: people have a right to go into Parliament square to have their say about the great issues of the day.
I have many members of the Tamil community in my constituency. During the conflict in Sri Lanka, many Tamils demonstrated in Parliament square against the Sri Lankan Government in the belief that they could influence our Government to do more than they were doing. In fact, the demonstration lasted several months and cost the taxpayer £7.5 million. When the Home Affairs Committee took evidence from the Mayor and the Metropolitan Police Commissioner, it was pointed out that police resources for that demonstration had been moved in from other parts of London.
I do not want to try to stop people demonstrating, but perhaps we should try to find another focal point where they can do so without causing so much disruption. That would also prevent the amount of resources used on the Tamil demonstration from having to be used in future. Obviously, it would be very nice if people did not shout at Members of Parliament as they moved in and out of the Palace—although I know that the Lord Chancellor is very used to standing on a soapbox and using a megaphone. He does so every week in Blackburn; I have witnessed him standing in the middle of the town square, shouting at everyone who goes past—
My right hon. Friend engages with his constituents, and they engage with him. It is always very friendly and polite, but that is quite different from what happens in Parliament square. We need to look at the matter and get the balance right, but we must also remember that there are policing aspects to it. There is a big cost to policing: when demonstrations take place, we must make sure that they are properly policed, without necessarily using too many resources.
My final point concerns the ratification of treaties. This is an excellent initiative on the part of the Lord Chancellor, although of course it is Parliament that must make a final decision on these matters. I only wish that we had given the US-UK extradition treaty the same level of scrutiny.
The hon. Member for Enfield, Southgate (Mr. Burrowes) was here a moment ago. His constituent Gary McKinnon is facing removal to the US under the US-UK treaty. The Home Affairs Committee today decided to hold evidence sessions to look at the treaty again, as I believe very strongly that the Americans got the best of the deal. I am not alone in believing that: as I made clear when we discussed these matters recently, my view is shared by a former Home Secretary. It is possible that treaties will be subject to better scrutiny if they are brought before the House, and I welcome what the Lord Chancellor proposes.
There have been huge constitutional changes over the past 12 years, and I am very proud to have served in, and supported, the Government who made them. However, some of us are disappointed with the Bill, from which we expected more but which lacks a big idea. The Prime Minister took over in June 2007, and he talked about the new constitutional settlement. At the time, I said to him, “What we need is a new Magna Carta. We’ve done so much, but we need to join it all together.” He agreed, and said that that was exactly what we needed. I said the same thing to the Minister of State, but the problem appeared to be that people objected to paying the £1 million proposed for the consultation exercise. Of course, the Magna Carta did not cost so much.
We need to join all the bits together—whether through a written constitution, a new Bill of rights, or a new Magna Carta. As my hon. Friend the Member for Cannock Chase (Dr. Wright) said, this is a moment in our history. It would be great if we could join together all the changes that we have made, and thereby leave an impressive legacy of constitutional reform.
I shall confine my remarks almost exclusively to part 3 of the Bill, on the House of Lords. I agree with most of the Bill and with quite a number of the remarks that I have heard this evening suggesting that some good things that should have been in the Bill were left out—concerning the Attorney-General, for example. Several people suggested that after the Prime Minister’s speech announcing all these wonderful constitutional changes, it must be Christmas—but it turned out to be Christmas in the workhouse, not the Christmas that most of us are fortunate enough to enjoy these days.
The Lords provisions are pretty meagre, as I have just said, but at least clause 26, which will slowly remove the hereditary peerage, is on the right track. It is certainly overdue and it will finally break the link between the House of Lords and the hereditary principle. That must be right. There are those who still challenge the constitutional notion that in the 21st century only those who have been put into Parliament by the electorate should have the right to make our laws, but there are now very few takers indeed for the notion that people should inherit the right to legislate—although, who knows, there may still be a few.
It is often forgotten that clause 26 is necessary, and that the hereditaries are still in place, because it suited the Blair Government’s purpose to keep them there. Not only did the Blair Government beat a hasty retreat from their pre-election promises of democracy for the Lords, but Tony Blair personally negotiated and stitched up a backroom deal with Lord Cranborne to perpetuate the hereditary peerage. That deal was subsequently given legislative effect in clauses in the House of Lords Act 1999.
I broke a three-line Whip to vote against those provisions, finding myself voting against both my party and the Labour party. In fact, in all three of the major rebellions that I have undertaken since I became an MP, I have been in the happy position, over 12 years, of voting against both the major parties. It is those provisions in the 1999 Act that clause 26 will reverse. If there is a vote on them, I certainly shall not vote against clause 26.
It is worth reminding ourselves just how pernicious what was done in 1999 is. It enables deceased hereditaries to be replaced by an electorate restricted to hereditaries of the same party. Lord Steel gave an interesting description of this. He said:
that is, the Liberal Democrats—
“had six candidates for a by-election and four voters. Before the Great Reform Bill of 1832, the rotten borough of Old Sarum had at least 11 voters. In the Labour Party, there were 11 candidates and only three voters, and we had the spectacle of the Clerk of the Parliaments declaring to the world that a new Member had been elected to the British Parliament by two votes to one.”—[Official Report, House of Lords, 20 July 2007; Vol. 694, c. 485.]
We need to move on from that.
The effect of removing the remaining hereditaries and the clauses on the removal and resignation of Members will reduce the size of the House of Lords. That is much needed, for many reasons. First, the House of Lords is the second biggest Chamber in the world. The only larger Chamber claiming to have any democratic legitimacy at all, and that is pretty thin, is the Chinese National party congress. Moreover, the UK is the only bicameral country where the second Chamber is larger than the first.
The second reason why the House of Lords needs to be reduced in size is that the problem of size has got worse under Labour. That is because the Government have created peerages at an unprecedented rate. Most of the hereditaries who were removed in 1999 never attended anyway. Half the active hereditary peerage survived in 1999 and became more active. Meanwhile, the Labour Government have appointed a huge number of peers— 386 out of a total of about 740. More than half the Members of the current House have come in since 1997. Labour, albeit understandably, because it was under-represented in the Lords, has been packing the second Chamber since it came in.
Is not that the real problem with the House of Lords—the power of the Prime Minister to appoint people to it, which gives him a control over older Back Benchers in this House and friends in business outside? My hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) has made the point that these creatures of the Prime Minister are even less legitimate and less independent than the hereditary peers, who exercise a degree of independence in voting, and may be better politicians than some of the creatures of the Prime Minister.
If I did not know the hon. Gentleman better, I might believe that he was a convert to the hereditary principle, but I presume that he is not. Appointment is, by a short head, better than heredity, but democracy is far better than both. I shall come to that in a moment.
The Labour deficit that existed in 1997 has been replaced with a Labour majority over the Conservatives of a little under 10 per cent. in the House of Lords. The third reason why size is such a problem is that that has inadvertently created a ratchet. I do not think Labour intended that. When the Conservatives come in, whether now or later, we will not let matters rest. We will rightly want to match Labour’s number with new creations, then we will probably want to create a modest majority of our own. So in an effort to achieve parity and beyond, the overall size of the Lords will increase, because those will be life peerages, and so it will go on. Each time there is a change of Government, there will be tit for tat. We cannot carry on like that, with an ever expanding House of Lords.
There is one radical solution, to which I referred a moment ago and for which I have argued since I was first elected to the Commons. Let us have a smaller, democratically elected second Chamber. This view is strongly held across the House of Commons—59 per cent. of Conservative MPs voted in the 2007 Divisions for at least one of the options for a largely or wholly elected second Chamber. The equivalent figures for Labour were 76 per cent. and for the Liberal Democrats 98 per cent.
Furthermore, as the Lord Chancellor suggested earlier, when it comes to much of the detail, there is a striking amount of agreement about the type of elected Chamber that we should put in place. I was initially sceptical about the work being done on the basis of the White Paper that was published, but I am now much more optimistic that it has made a considerable contribution to the debate.
However, if the chances of securing democracy in the near future were already relatively slim, they can now be considered virtually non-existent, as a consequence of the economic crisis. That has changed everything. Any Government who tried to make such a change in such an economic climate would be accused of having the wrong priorities, and the accusation would probably stick. People would become all the more vitriolic if, as I suspect would happen and a number of Members have implied would happen, introducing such a Bill precipitated a constitutional crisis.
There are a good number of last ditchers in the other place and they will throw out such a Bill. We will be into a constitutional crisis, with huge amounts of parliamentary time, energy and activity taken up with trying to get it through. It will be a rerun of what happened 100 years ago. Can we afford to engage in that while we are trying to tackle the biggest economic recession since the war, when the debt-to-GDP ratio has just doubled and we are running a deficit unprecedented in peacetime history? I do not think the country would understand that, and any party that tried to achieve it would be making a huge political and governmental mistake.
However, the choice need not be between the measures in part 3, on the one hand, and full democracy on the other. There is another measure, very limited and with immediate effect, which could control the ratchet on the number of peerages created, improve the working of the existing House, and at the same time lay the foundations for a more radical democratic House, should a subsequent Parliament decide to go down that route. That measure would be the introduction of term peerages: peerages conferred for a fixed period. I have held to the view for some years that it might be necessary as an interim measure.
My right hon. Friend the Member for North-West Hampshire (Sir George Young) is now the shadow Leader of the House, but earlier in the year, when he was still a Back Bencher, he and I published a paper setting out the proposal, with some detail attached to it. Term peerages would adopt the approach, already agreed between the parties, that a predominantly elected second Chamber would comprise those serving a single, non-renewable term of three Parliaments. The term of those appointments would therefore be the same as that which we would eventually introduce for a democratic second Chamber: three Parliaments. I do not support varying the term to take account of a Government’s particular needs at a particular time to put in a Minister whom they might want for a short period. The term should be fixed and, perhaps, salaried, and it should be understood that getting a place in that Chamber would involve work and commitment. It would not be a status appointment.
The advantages of the measure would be apparent very quickly. It would end the ratchet and emphasise that those people were active working politicians. Lord Jay, the Chairman of the House of Lords Appointments Commission, recently emphasised that the appointments process should
“move further along that curve from honour to job.”
I agree, as I think most people do.
Another reason why we should support the proposal is that, unlike most proposals for democracy, it would leave existing life peers unaffected. One might find it surprising that I should say that, but any proposal that would fundamentally alter the life peerage will meet such a wall of opposition that proceedings on it will take over this place for a year or two at a time. By agreement between the parties, however, new life peerages could be brought to an end, and we could restrict appointments to interim peerages—much as, over time, hereditary peerages were largely but not entirely replaced by life peerages after the 1958 change.
Almost everyone agrees that the current arrangements for the House of Lords are unsatisfactory to say the least—almost everyone, that is, except a majority in the House of Lords itself, who are a somewhat interested party in this matter. However, an increasing number acknowledge my earlier point that an early move to democracy is unrealistic in this economic climate, so term peerages would be a practical means of invigorating the Lords while addressing many of its current problems, strengthening our Parliament and constitution and retaining some continuity with the best of the current House.
I shall table an amendment in Committee to give effect to term peerages. In doing so, I should very much like the support of my Front Benchers and, I hope, Labour Members as well as Liberal Members. I hope and believe that it is an idea whose time has come.
There has been a great deal of gloom, some of which we have heard today, about the British constitution, about Parliament and about the public’s loss of confidence in us. The proposal that I have outlined will not overturn all that, but by demonstrating that we can work together on a relatively modest, yet in the long run far-reaching, change, we will do something to show that we in this Chamber are working for the common weal, and we will do just a little bit to help restore the public’s confidence in us.
I very much appreciate the speech by the hon. Member for Chichester (Mr. Tyrie), but I assure him that I am actually a unicameralist who voted accordingly in our series of votes in the Chamber. I voted for unicameralism and against everything else, as did a number of my comrades on the Labour Benches. Indeed, half of all Labour Back Benchers voted for that amendment, despite the attractions of being put out to grass towards the end of their careers. They still voted in a principled way for unicameralism, and I was very pleased by that.
I am pleased to have the opportunity to speak, and even more pleased to be a member of the Select Committee on Public Administration, which my hon. Friend the Member for Cannock Chase (Dr. Wright) so splendidly chairs. It has really been an experience: we have discussed these matters at length on many occasions and interviewed many senior figures from politics and Government.
I want to cover several issues, but I start with the right to statutory protection for an independent civil service. The civil service has certain problems. This view may be unfashionable, but I do not like the idea that the civil service should be permeated by business and outside interests. It is absolutely accepted that we should have staff of the highest intellectual calibre in the senior civil service, but they should be career civil servants who see themselves as lifelong, committed people—committed to the service of the public and the state. They should not have one foot in business, nor should they be politicised. They should not look for financial advancement or advantage at any stage; they should see themselves as servants of the state and have a moral compass—to coin a phrase—in respect of their attitude to the job. The post of senior civil servant should be a special calling, not something tainted by association with making money and the like.
I am worried about drift in the civil service. Some people see it as beneficial to the service, but I do not. It has been suggested to me, for example, that there is an in-house corporate lobby for the six big energy producers, meaning that civil servants resist proposals for localised renewable energy systems by dragging their feet and making life difficult for those involved. It is not without significance that we have less renewable energy than every other European country apart from Malta and Luxembourg, and I suspect that civil servants have had a part to play in that. I do not blame all civil servants, but the accusation has been put to me and I suspect that there is a basis to it.
Some years ago, a leading business man was employed by a company to secure private finance initiative contracts from the Department of Health, and all of a sudden he was appointed as the Department’s industrial director, levering out PFI schemes from the inside to his friends on the outside. He subsequently went off to become a banker. The civil service should not consist of such people. They should be in banking, no doubt, and in private business, but they should not be representing the public interest from inside the civil service. That has concerned me for a long time.
There is another fact about the civil service which worries me: civil servants have tended to be dominated by the prevailing ideology of the past 20 or 30 years. When I was a student many years ago, I met a former senior civil servant who was a university lecturer. He said that in his day there was a genuine debate inside the civil service about economics, and if policy changed there were always civil servants around who were schooled in an alternative view, and they could put it into practice. That is not the case now. The Treasury was at fault in not seeing the recent crisis that occurred. I hear very little criticism of the Treasury, but I think that it was at fault. If somebody had been ringing the alarm bells, we would not have got as close to the cliff edge as we did. Perhaps I have a dream that there was once a golden age for the civil service when it was dominated by people of good will—career civil servants who were not at all tainted by the interests of money outside, and had open minds.
Another fact about the civil service is that it is, in all things, wise to be able to discuss one’s view with someone who opposes them. In this Chamber we have an enormous range of views, and every time we put forward a view it can be challenged. Someone who surrounds himself with people all of whom agree with him, or eliminates from his office anybody who disagrees with him, will finish up making mistakes. That has happened in the past. An example that has been put to me is that of Nigel Lawson, as Chancellor, pushing the exchange rate mechanism strategy. Apparently he did not want people who took an alternative view, and surrounded himself with those who supported the ERM strategy. That was a catastrophic mistake that went badly wrong; I suggest that it was even responsible for his party’s loss of the general election in 1997. It was the folk memory of the disaster of the ERM strategy that destroyed the Tory Government more than anything else. If Nigel Lawson had had around him people who took a strongly different view, he might not have made that mistake. I like to think that our civil servants will be strong enough to welcome alternative views and at least to have a debate about major matters of policy.
I have another concern, about the Comptroller and Auditor General—but excuse me, Mr. Deputy Speaker: I have a sore throat and a cold, and I do not think that I shall be able to continue for much longer because of my mild indisposition. Having made some of the points that I wished to make, I will save the rest of my remarks for another occasion.
It is always a pleasure to listen to the hon. Member for Luton, North (Kelvin Hopkins), even when he is struggling with a sore throat, from which I hope he soon recovers.
Before reading the Bill, I had a look at the explanatory notes—I usually do it the other round—and found to my surprise that they were full of aspirational comments from the Green Paper of July 2007, stating that the background to the Bill included the Government’s goals
“To invigorate our democracy…To clarify the role of Government, both central and local…To rebalance power between Parliament and the Government, and give Parliament more ability to hold the Government to account…and…To work with the British people to achieve a stronger sense of what it means to be British.”
That all sounds very fine, but it does not seem to have a great deal to do with the Bill that we now have before us. I appreciate that that Green Paper also related to some of the other things that the Government have done. I celebrated one of those with them only last Friday with the opening of the Supreme Court—a happy occasion. That is an important symbolic change that also has some practical significance and one that I very much welcome. That measure was introduced only after my Committee, the Justice Committee, had persuaded the Government to get it right following the back-of-an-envelope job with which they started, but all credit to them for carrying it through.
When I looked from those grand aspirations to the Bill, I saw a Bill that had first been stripped of some of the important issues that were raised in 2007, such as the role of the Attorney-General, and seems even slighter when set against the Prime Minister’s statement on the constitution in July this year. It represents a distinct change of atmosphere. I was struck by the Secretary of State’s quoting the report by the Joint Committee on the Draft Constitutional Renewal Bill and indicating that there was significant opposition in the House of Lords to the proposals to change the precise status of the Attorney-General. I do not know whether his experience compares with mine, but I find that in discussions in the other place one encounters the trade union of former Law Officers, who find it difficult to accept that there should ever be any change in that position. They are rather like the Lord Chancellor in “Iolanthe”:
“The Law is the true embodiment
Of everything that’s excellent.”
In particular, members of that informal trade union believe that any change in the position of Attorney-General casts doubt on the ability that they themselves exercised to draw a proper distinction between their political and legal roles—that it casts doubt on their integrity. Of course, it is nothing of the kind—it is a consideration of what would be a proper system for the future. Nevertheless, that seems to be a pretty powerful body at the other end of the building.
The Bill fails to meet the objectives set out in the Prime Minister’s statement. Let us start with the House of Lords. The hon. Member for Chichester (Mr. Tyrie), who is a valued member of the Justice Committee, advanced his own interesting proposal, but what we are in danger of living with for many years to come is not what this House voted for—a predominantly elected second Chamber—but an appointed Chamber in which more and more people are appointed and all new Governments carry out a rebalancing by appointing many more peers to ensure that the Chamber is not overwhelmed by those from the previous Administration. The hon. Gentleman quoted the very high figure of 300-odd peers appointed under the present Government. The Prime Minister has himself appointed no fewer than eleven peers to be Ministers, many of whom have since given up that role but still have the position of legislator for life that membership of the House of Lords confers. It now looks as though we will have a long continuation of appointment, possibly moderated in the way the hon. Gentleman suggested. There is merit in his proposal, particularly if it is possible that a new Government, of whatever kind, might—because nothing had yet been done to change the Lords— have to make some initial appointments.
An alternative solution to the problem is to allow Governments to have a certain number of Ministers who are not a Member of either House but who can be questioned in either House. We already have the problem that some of the most powerful Ministers in the Government, such as the Business Secretary, Lord Mandelson, cannot be brought into the Chamber of this House to be questioned, although they can be brought into Select Committees. There is no reason why we should not make arrangements for a small number of Ministers, whether from the Lords or not from either House, to be questioned in this Chamber.
I have not made up my mind to oppose the proposal by the hon. Member for Chichester, but my worry is that it would give a spurious legitimacy to appointment for potentially quite a long period and further delay the reform that is required—the creation of a predominantly elected second Chamber. I suspect that he must have been influenced by hearing about leaders in his own party starting to hand out their own future peerages. We even know who some of them will be, if the Conservatives get the opportunity to create them. If we are to believe what we read in the press, serving officers still receiving their pay in Her Majesty’s forces—in the case of Sir Richard Dannatt—are being told that a peerage will be theirs. In respect of the House of Lords, the Bill, whether or not amended in the way that the hon. Member for Chichester suggests, goes nowhere towards meeting the Prime Minister’s aspirations.
The Bill does not advance the aspirations about rebalancing the relationship between the Executive and Parliament. I agree that it is right that Parliament should approve treaties, but let nobody suppose that in most situations that will not mean the Government of the day winning the support of their own Members to ensure that a treaty is ratified. The Bill does not affect the things that severely unbalance the relationship between the Executive and Parliament now. Even in the workings of Parliament itself, so many things need to be attended to. I sincerely hope that those matters will be addressed by the Public Administration Committee, chaired by the hon. Member for Cannock Chase (Dr. Wright), which plays a significant part in this process.
In the Justice Committee, we feel strongly that there are crucial things to be done. The control of the Order Paper by the Executive means that what this House discusses is effectively decided by the Executive. The dual role of the Leader of the House in being the main channel for House business, yet at the same time a member of the Executive, is not the way in which most legislatures would run their affairs. The House itself has no mechanism for introducing effective motions relating to business and the timing of business other than through the Leader of the House. The House itself is not making the decisions about how the Government’s business should be dealt with. The Government are entitled to bring their business before the House and to have a means of ensuring that they are not frustrated by delay. However, the House should have the power to decide what are the most significant parts of that business and how it can be effectively debated, as well as to say, “We need more time to deal with this Bill even if we have to sacrifice some time on another Bill.” At the moment, the House does not have that power. That is not to anyone’s benefit, least of all those who have to work with the legislation that the House passes.
If anybody thought that the Government, in introducing the idea of confirmation or appointment hearings, had any intention of rebalancing the relationship between Parliament and the Executive, they will have been disabused of that notion by the discovery that on a rare occasion when a Committee has said, “No, we don’t like the idea of this appointment”, the Executive have replied, “That’s very interesting, but we’re taking no notice whatever.” Nothing about the Bill or the measures surrounding it will rebalance the relationship between the Executive and Parliament, so it totally fails to satisfy the Prime Minister’s aspirations.
What about the decentralising of power to local government? I see no evidence that the Government are prepared to take many steps in that direction or that they have accepted the fundamental philosophy required to so do, which is that local authorities in different parts of the country can do things differently and frame different targets and objectives instead of having them set by central Government. That is an issue for all the parties to consider, and it is part of my party’s philosophy to a significant extent. Even we have to challenge ourselves from time to time and ask whether we are abiding by the philosophy of recognising localism.
I am convinced that the Conservative party has not absorbed a point that had a certain resonance in Conservative circles in times past—the importance of local decisions, locally made. The ideas that the party is currently putting forward are not backed up by a real philosophical commitment. Whenever anybody uses the expression “postcode lottery”, I have to say, “Just a minute. We are bound to have differences between postcodes if we genuinely allow local authorities to make different decisions and make them democratically accountable for doing so.” I challenge that term whenever I hear it. Of course people are entitled to campaign that their area should get what another area is providing, but in the context of different areas making different choices among competing priorities.
The Prime Minister has raised the issue of electoral reform and talked about a referendum on the alternative vote system. Indeed, the Government commissioned a substantial piece of work about the details of electoral reform, which produced a good, objective statement about various kinds of electoral system. It was one of the more objective things that I have seen come from the Government on the subject. However, none of that indicates any real progress or commitment. We will not rebalance the relationship between Parliament and the Executive if Governments can, for most of the time, rely on a significant majority in this House that is not reflected in votes in the country. The Prime Minister has also mentioned a written constitution, which can cover a wide range of possibilities and would be a major undertaking for this country.
Perhaps even more significant are the issues that the Prime Minister has not mentioned and are not in the Bill, but are fundamental if we are reviewing our constitution. The one that few people dare to discuss is the English question. England has been left with a pre-devolution form of government in a pre-devolution time warp. The government of Scotland, Wales and Northern Ireland has changed fundamentally, but England is governed by the Government of the United Kingdom. It is governed by UK Ministers and the UK Parliament, so not only is Parliament unrepresentative of the balance of parties in England, but many Ministers dealing entirely with English matters are drawn from the other parts of the UK.
There are many different ways of responding to that problem, but it cannot be acceptable simply to say that nothing has changed. Things clearly have changed—people look at Scotland, Wales and Northern Ireland and see different kinds of decisions being taken. They say, “We do not have the power to make those decisions, either in a region of England, in a local authority area or at England level.” The Justice Committee has addressed that point in its report on devolution, and the Government must address it.
Another crucial issue that is absent from the Government’s thinking and from the Bill is that of fixed-term Parliaments. As long as the Prime Minister can seek a dissolution at a time of his choosing, Parliament is weakened in relation to the Executive and we impose a limitation on its ability to challenge them.
I turn now to the role of the Attorney-General, which I mentioned earlier. It was covered in the draft Bill but is not in the Bill in front of us. The Attorney-General combines a ministerial role as overseer of the prosecution system with the role of legal adviser to the Government and that of deciding whether certain prosecutions should go ahead. The view of the Justice Committee was that those roles should be separated, and that view is widespread outside the House. It is brought into sharp focus when controversial cases arise.
The situation was in some ways worsened when the assumption was created that the Attorney-General should attend not just Cabinet meetings at which her advice was needed but all Cabinet meetings, which was the situation until relatively recently. When we questioned the current Attorney-General about that, she indicated that it was the Prime Minister’s wish that she should attend all Cabinet meetings. I thought that that answer was rather revealing, because it showed the significance to her of the Prime Minister’s wishes. I would rather hear the Attorney-General say, “The Prime Minister may want certain things, but I am the Attorney-General and my role is very distinct.” There are many issues on which she has to say exactly that.
There have been some changes in the wake of the discussions on the draft Bill, and the Attorney-General does not now attend all Cabinet meetings. We are back to the previous situation, and she attends when asked to do so to discuss particular matters. The decision was made that there should be a protocol to strengthen the independence of the Director of Public Prosecutions, which I welcome as it has given a certain new authority to the Crown Prosecution Service. My Committee recently reported on the work of the CPS and the progress that it is making.
One issue that the Committee was particularly concerned about was the power in the draft Bill for the Attorney-General to discontinue not only prosecutions but investigations by the Serious Fraud Office. That is no longer in the Bill, as that whole section has gone. The response to our questions and criticisms was that that power essentially already existed, because the SFO is the responsibility of the Attorney-General. If anybody believes that that power exists, I am rather concerned about it. I hope that its absence from the Bill can be taken as an indication that Parliament does not want it to be viewed in that light. It is one thing for the Attorney-General to decide that a prosecution should not go ahead on the grounds of national security, but it is quite another for her to decide that a matter should not be investigated at all. That power does not exist in relation to police or Revenue and Customs prosecutions, and it should not be assumed to exist in the case of serious fraud.
On national security, my view, which was reflected in what the Committee said, is that it is not really the Attorney-General who knows about that. There are circumstances in which the Prime Minister, advised by intelligence agencies, knows things about national security that will be unknown to the Attorney-General, and there are very exceptional circumstances when it will be right for the Prime Minister to make representations to the DPP about the national security implications of proceeding with a prosecution. When that is the case, those representations should come directly from the Prime Minister, which would make them persuasive to the DPP. I do not see a necessary role for the Attorney-General in that process.
Essentially, the Justice Committee argued that the office should be separated out. There should be a legal adviser to the Government who is a career civil servant, which is the direction in which things are moving in Scotland. The current Lord Advocate has moved from one Administration to another and remained in office, so that is moving in the direction of a career appointment. There should still be a ministerial role for someone with responsibility for whether the prosecution system is working, efficient and properly resourced. I hope that I am wrong in imagining that the Government have carefully drafted the Bill to prevent us from discussing that matter in Committee, because many of us feel that we ought to do so.
I have just one point to make. I strongly agree with everything that the right hon. Gentleman has just said about the Attorney-General’s role, but he did not make the point that it was not only the Justice Committee that came to that conclusion, but the Select Committee on Constitutional Affairs, both of which the right hon. Gentleman chaired. The Public Administration Committee also looked at the issue and came to the same conclusion. The same evidence from the same people was then heard by the Joint Committee, which extraordinarily seemed to divine from it a quite different conclusion. I think that that might say something about how the decision to withdraw that part of the Bill came to be taken.
When talking about the Justice Committee, I tend to subsume our previous existence as the Constitutional Affairs Committee, having been Chairman throughout, as the changes of departmental name and structure were reflected in what we were doing. However, the hon. Gentleman is quite right to refer to the other bodies that have taken the same view. Those on the Joint Committee who argued very strongly for that view were perplexed by anyone drawing a different conclusion from the evidence with which they were presented.
To return to the overall theme, the Prime Minister has announced grand aspirations. Clearly, this is a time when we need to offer people a basis on which they can have greater confidence that they have a system of government that can respond to their concerns and govern the country efficiently, and in which nobody has too much power. That requires a lot a fundamental constitutional change.
The Government’s approach to constitutional reform, the Committee has argued, has been ad hoc and piecemeal. The reforms that we have been talking about will determine the direction and nature of our institutions for generations to come, so we must get it right and it must be done properly. Therefore, we need an underpinning set of constitutional principles based on a proper understanding of the position and role of Parliament in relation to other institutions of state. The reforms cannot be taken in isolation: one affects another.
I do not think we have had a process that best achieves that; nor do I think that the roadshow will achieve it. As the hon. Member for Cannock Chase indicated earlier, there is a case for some form of constitutional convention or commission to take on a wider responsibility for ensuring that good, underlying principles are carried through into sound constitutional reforms.
That is one of the lessons of devolution in Scotland and Wales. It was much more difficult to persuade people that constitutional change should take place in Wales, because there had not been the same process of constitutional convention as there was in Scotland. Now that devolution has happened in Wales, I would not advise anyone to put money on people voting in future to reverse the constitutional changes that created an Assembly and Government there. In Scotland, the process was made much easier by the fact that there was a substantial amount of agreement by a wide range of bodies, parties, and community institutions and organisations, about the direction of travel. Constitutional change needs to be properly underpinned, widely discussed and more ambitious than the Bill.
This debate, I believe, illustrates what is so wrong with our constitution and demonstrates how dire things are, not because of anything that is being said, but by the manner of the exchange. Look how barely attended the Chamber is! We debate our constitution, yet the people’s tribunes are not here. Whips scurry around outside desperate to gather enough speakers to try to keep things ticking along and running until 10 pm. The agents of the Executive try to create the illusion of debate—a debate with all the spontaneity of a Latin Mass. So moribund is our constitution, so monumentally useless our legislature, it is reduced to a talking shop, and it cannot even do that until 10 pm without prodding from the Executive. So much for our proud tradition of Parliament, so much for this legislature.
There is much that is wrong with our constitution—a deep, deep malaise. The Justice Secretary galloped through some of the changes of the past decade, which he proclaimed as a blueprint for change. It is more like a blueprint to replace democracy with quangocracy. Power has shifted from those we elect to unelected officials. Those whose names actually appear on ballot papers no longer seem to have much actual say over public policy. Instead, key matters are decided, for example, by activist judges adjudicating on the basis of a bogus Human Rights Act. Public policy is formulated by an alphabet soup of quangos. We have the Qualifications and Curriculum Authority, the Child Support Agency and the Driver and Vehicle Licensing Agency—the QCA, the CSA and the DVLA. In fact, there are so many quangos that they have run out of letters of the alphabet. FSA stands both for Food Standards Agency and Financial Services Authority; a food quango and a financial service quango.
Nothing in the Bill will put any of that right. There is nothing to rein in the Executive, its agencies or the quango regime. There is nothing to restore purpose to this Parliament and nothing that will return dignity to politics. No wonder turnout has fallen in each election and no surprise that fewer bother to vote. It is not that the people are apathetic, but that the public have correctly clocked that our democracy is broken.
The Bill ought to contain measures to renew our political system. What about a right of popular initiative? If people had a direct say over what the House debated, there would be fewer debates like this. There would be more time to consider issues that actually matter to people. Our agenda would be less the smug musings of a self-satisfied tribe in SW1. The Bill should contain provision for people’s Bills to be included in each Queen’s Speech. New Zealand has a right of popular initiative. It is compatible with, and complementary to, a system of parliamentary democracy. MPs would be obliged to vote for what people wanted them to debate, but they would no longer be able to ignore popular concerns.
Constitutional change needs to include the power to recall MPs who are guilty of wrongdoing. I proposed a Bill to that effect last week, but the Justice Secretary did not actually support it. For all his smooth words, nothing happened.
The Bill should address the balance—or, rather, it should address the imbalance of power—between the Executive and the legislature. Fiddling about with a Ponsonby rule will not do. We need to recalibrate the relationship between the legislature and the Executive—fundamental, radical change. It is not the Ponsonby rule that most explains how the Executive dominates this legislature, but the abuse of Crown prerogative over money and estimates, and over appointments and patronage. That is what has reduced the House. It has diminished hon. Members to being puppets of Whitehall and Ministers to being apologists to the Sir Humphrey Applebys.
The House was given to understand that the legislature would approve key Executive appointments. Amid much fanfare, we were told how pre-appointment hearings would help to democratise the quangos. Yesterday, we saw a Secretary of State ride roughshod over legislative oversight. The Select Committee recommendations were just ignored. Pre-appointment hearings are, frankly, worthless. The Bill ought to provide for full confirmation hearings for quango officials and senior civil servants. No approval, no contract: that would rein in the quango state. Until that happens, there will be no meaningful scrutiny over Executive appointments.
Likewise, we need in the Bill to reform how the House oversees finances. Estimates days are a charade. Supply estimates need to be more than just changed, as the Bill envisages. There is currently too little debate, too little oversight and too little scrutiny. Instead, Select Committees should be required annually to approve the expenditure of their respective Departments and the non-departmental public bodies associated with them.
Proper legislatures in other parts of the world properly scrutinise tax revenue and how it is spent. Committees of Congress can go through budgets item by item. If we had that, those whom we elect might at last be able to make good on the tax-and-spend promises that they pretend are in their gift now. Giving Select Committees real power and independence, power to oversee finance, and one even to confirm ministerial appointments, would lead us towards the separation of powers that we urgently need.
The Bill does little to improve our constitution. It is a product of SW1. Is it not the proud boast of the British left that they were once the party of English radicalism and the party that dispersed power away from unaccountable elites? The Bill focuses instead on the petty concerns of those elites in SW1—demonstrations in Parliament square and such like. There is nothing in this Bill that invokes the spirit of the Levellers or the Chartists. It will do nothing to fulfil the incomplete English revolution. It will do nothing to provide us with the far-reaching radical reforms that we so urgently need.
I wish today to address the proposals in the Bill to remove the hereditary principle of the House of Lords. The wish to remove peers is based on the seemingly arbitrary principle of how they were ennobled. That is a worrying portent for the future. It takes another step towards the Government’s stated goal of a democratic second Chamber, and it is another example of the Government’s scattergun approach to Lords reform. What is one day deemed valid is the next day cast aside. Though the remaining hereditary peers were retained in 1999, the Government now wield grand claims of democracy to advance the case for their removal.
The argument over the future of the second Chamber is composition versus effectiveness. That is certainly the correct way to address this. However, viewed from the House of Commons, the wrong question is presented—the question of popular accountability. The House of Lords is built not upon the legitimacy of election, but the legitimacy of knowledge. The level of experience and expert opinion in the Lords cannot easily be reproduced through election. However keen the minds of those in this Chamber, few of us are held to be leading authorities or globally recognised figures on even the subjects that we hold dear. The experience of decades of work cannot be picked up from simply studying an issue—it must be lived. Peers contribute to a body of knowledge unique in the world.
Therefore, the removal of the House of Lords would damage both the quality of legislation and the quality of government. The rush of legislation through this Chamber already leaves a mountain of details to be amended by the Lords. Without the revision that the Lords provides, we have a choice between significantly reforming this Chamber, and allowing the quality of legislation to diminish rapidly.
The second part of this point is that the creation of an elected second Chamber would also undermine the quality of government. Many members of the other place have served with distinction. Ridding ourselves of such a pool to satisfy the demands of democracy is one thing, but ridding ourselves of individuals is utterly self-defeating. I think of the Marquess of Salisbury, the first Prime Minister of the 20th century. His Government passed, for example, the Naval Defence Act 1889, which ensured the Royal Navy’s pre-eminence. I think of Lord Carrington and his integrity. He ended a lifetime of service by resigning on a point of responsibility which, sadly, does not echo as often as it should. I also refer to Lord Mandelson, who has sought so animatedly to reinvigorate this Government. Indeed, it is the appointment of Lord Mandelson and others that betrays the inconsistency at the heart of the Government’s approach. They cannot, on the one hand, endow an unelected person with a senior position in the Government, and on the other, decry the same system that allowed them to do so. They cannot have it both ways. Is it not contrary to use such a wonderful resource while seeking to do away with it for future Governments? Does the willingness of this Government to use the Lords not legitimise its existence—an existence that the Labour party has lived with for 12 years now?
As the Government are keen to point out, peers may not be accountable to the nation. But they are free from the concerns of keeping their seat. This independence would not be retained with an elected membership. Such a Chamber would simply end up mirroring the arrangements and partisanship of the Commons. Two Chambers, in which a Member’s allegiance is as much to his party as to his conscience, would not be conducive to reasoned debate. Two Chambers, in which the Government command the majority and the timetable, would certainly not be conducive to effective scrutiny.
Hereditary peers are, if anything, the epitome of independence. They carry with them a duty and a sense of loyalty that exists outside politics. I am very sad that the majority of hereditary peers have gone, but gone they mostly have. This Government, and Tony Blair’s before them, have sought to end generations of successive service and instead replaced it with partisan appointment as and when they saw fit. To say one type of patronage is wrong, while promoting another, is nonsensical. More than 600 hereditary peers were removed because of their perceived lack of democratic credentials, but almost 400 life peers have been created since 1997, with the same apparent deficit.
The proposals for an elected House simply advance this contradiction. Holding elections once every 15 years would simply create life peers who are willing to stand—once—for election. These people are likely to be picked or at least pushed by parties. If that were the case, all that the Government would have accomplished would be to create a new system of patronage after they had abolished the present one. Furthermore, I fail to understand how an individual’s actions can be held to account if they serve only one term. How is a term of such length any more responsive to the will of voters than the lifelong terms at present?
Ending the by-election of hereditary peers and beginning the sapping of their number represents a step toward an unknown constitutional settlement. I believe that it would insert more uncertainties and undesirables into the constitution than it could ever hope to remove. What is needed is not rapid change, but simply a limit on the size of the Lords, perhaps no larger than at the present level. That would curtail the power of patronage over successive Governments, with peers replaced as and when necessary. As Lord Hugh Cecil MP said, in early 20th century, on the subject of Lords reform:
“Why rush into danger instead of staying in safety?”
Finally, I would like to draw attention to the title of this Bill—the Constitutional Reform and Governance Bill. It contains very few provisions for the administration of this House. I question whether the Government are simply trying to win a symbolic victory outside this Chamber, when what is required is a substantive reassessment of what goes on inside it.
I am grateful for the opportunity to speak on the Second Reading of this Bill. I assure my hon. Friend the Member for Harwich (Mr. Carswell) that I am genuinely here to speak on the Bill and under no other pretence. I wish to touch on two parts of the Bill in particular—part 1 in respect of the civil service and part 6 on courts and tribunals.
First and foremost, however, I want to develop some of the arguments made already this evening about the omissions from the Bill, many of which are extremely significant. It is fair to say that the Bill has received rather muted applause. It has been described as lacking in real zeal, as a mouse of a Bill, as trimmings rather than meat and by the hon. Member for Cambridge (David Howarth) as a pathetic little Bill. I shall be more charitable and call it a modest Bill, although the original constitutional reform plans have clearly been watered down since last year.
The question is more what is not in the Bill than what is in it. Clearly the seeds of the Bill lay in the idea that there was a deep fracture at the heart of our democracy and that restoring public trust in the political system was a priority. For me, the heart of that is ensuring the independence of this House, and the genuine purpose of its power is to hold the Government to account.
On 27 May, the Prime Minister said that one of his main priorities was the
“strengthening of Parliament against the executive”.
I am still a relatively new Member of this House, but I have been exposed to the system of Select Committees, in which one of the first innovations in trying to provide greater scrutiny of the Executive through public appointments has been tried out. Sadly, I can feel only dismayed by the process that has been played out in the Children, Schools and Families Committee this week and last. I was led to believe that we, as Committee members, had a responsibility as well as a mandate to ensure that those public appointments, through the pre-appointment hearings, were genuinely in the interests of the public and that our word would be taken not for granted but with great seriousness and care by the Executive making the appointment.
Despite the noises from the Government about wanting to open up the scrutiny of the Executive, we are left essentially with a charade in which Committee members—I include myself in this—feel no more than spectators of an Executive sport. It raises the question whether what the Government want to achieve is what we want to achieve. There is no point in holding pre-appointment hearings unless they have meaning. How can a unanimous decision by a Select Committee not to endorse a candidate for a prominent and important public post—the Children’s Commissioner—not even be given a second thought by the Secretary of State when deciding on the correct person for the appointment, and simply be brushed to one side without any consultation?
That is a huge disappointment, which reflects in many ways my concerns about omissions from the Bill. Where in the Bill will the patronage of the Prime Minister be cut? Where does the Bill address the Prime Minister’s power to destroy or create Departments by subjecting it to parliamentary approval? Where in the Bill is the power for the introduction of annual debates in the House of Commons on all Departments’ plans and objectives? We have heard from both sides of the House the desire to introduce greater scrutiny of the Government, particularly through the legislature, but we see in the Bill very little attempt to bring that about.
The hon. Gentleman is talking about scrutiny of the Government. Does he share my concern that scrutiny is moving further away from Parliament, through the creation of quangos, which are growing like Topsy, employing more and more people, spending more and more public money and circumventing the normal democratic routes and controls? I know that he, like me, wants smaller government. Does he think that the Bill misses an opportunity in not setting targets to reduce the number of quangos and the amount that the chairmen and boards of directors of quangos can be paid—for instance, to the maximum of an MP’s salary, which I think is a perfectly good salary? Would he agree with such a move? Would he like to debate that during consideration of the Bill?
I could not agree more on the proliferation of quangos, and also on the control that they exert and the lack of transparency within them. The point was made earlier that there are now so many quangos that they have to share the same acronyms. We need to look at where power lies. We need to ensure that the public not only have confidence in where power lies, but have trust in those who hold that power. With the current system of quangos, which is prevalent in many areas and particularly in education, not only is it impossible to hold the Government to account, but where quangos are seen to be at fault the Government can say that they are arm’s-length bodies and absolve themselves of all responsibility.
We heard from my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve) about the 12 areas of power that the Government were looking to shift. He could name only two—bishops and quangos—that had been affected and suggested that in fact the figure was perhaps only one and a half or one and a quarter, the half or quarter being the quangos. I would go further and say that the figure is just one, because the Bill does not deal with the power that quangos still hold or with our being able to hold them to account. My experience on the Children, Schools and Families Committee is an illustration of exactly how the Executive are still trying to hold close to their chest the power that we know should be much more readily accessible to us as both members of the public and Members of this House.
There is more that we can do with Select Committees. We could have elected Chairmen. As my hon. Friend the Member for Harwich said, we could also open up Departments’ finances to Select Committee scrutiny. That would send a clear message that the power of the Executive needs to be far more measured against the power of the legislature.
Let me move on to some aspects of the Bill that, in the main, I welcome. I start with part 6, which deals with courts and tribunals. We have heard from other Members, particularly the right hon. Member for Leicester, East (Keith Vaz), about the judicial appointments system. It is clear that the process of judicial appointments has been subject to substantial change in recent years, as the Lord Chancellor acknowledged when he mentioned that judicial appointments would be best left as they stood because the system had been changed only a couple of years ago.
However, there is a deeper issue than that in judicial appointments: how the current system is working. Only recently, we have seen substantial changes, with the Constitutional Reform Act 2005, which introduced a new Supreme Court and established the Judicial Appointments Commission. We then had the Tribunals, Courts and Enforcement Act 2007, which made changes to the eligibility criteria. Now we see another, more symbolic change, in clause 35, with the Prime Minister being removed from the process of appointment to the judiciary in England and Wales.
However, there is still a fundamental problem at the heart of judicial appointments: the backlog that has developed in the appointment of judges and recorders in particular. We know that there is a shortage of judges in our courts, particularly in the family division. I declare an interest as a non-practising barrister at the family bar. It is clear that we are short of good, well-qualified family judges, but we are also just short of family judges. The slowness of the process has dragged things out to the point where a lot of extremely high-calibre candidates are waiting to go through the selection process to be appointed to the bench. If things are not brought forward, they may feel frustrated and we would miss out on their great service.
I should like to say two things to the hon. Gentleman about the judicial appointments process, one of which I should perhaps have said earlier. Although there have been criticisms, which I have echoed, about the process and about the lack of diversity, I think that everyone accepts that the quality of the selected candidates is as high as it ever was. That is of critical importance.
Secondly, the hon. Gentleman obviously has experience of the family Bar, and if he has reasonably good evidence—it does not have to be cast-iron evidence—of delays or of how the system has operated unacceptably or been disruptive in the way that he has suggested, I would be pleased to hear from him. The chair of the Judicial Appointments Commission, Usha Prashar, is concerned—as are the Lord Chief Justice and I—to ensure that, even though the system has certain delays built in, we must make it work as swiftly as possible to avoid all the frustrations to which the hon. Gentleman has referred.
I would be very happy to write to the Lord Chancellor with a specific example from two of the circuits on which I have practised in the recent past. I would add that we have recently seen a 47 per cent. increase in the number of care applications to the family courts, and that that is putting additional pressure on the system. We need to be able to make the appointments when necessary on a regular basis, as well as to predict any rush of applications that would necessitate greater judicial input. That would ensure that we were able to remain ahead of the curve, rather than simply reacting to the situation, as is often the case in the courts system. I will be happy to write to the right hon. Gentleman on that issue.
It is important that we have judges who demonstrate diversity, high quality and, of course, independence. I therefore welcome the review of judicial appointments to ensure that we have as robust a system as possible, to give us not only the best candidates but enough candidates to keep the judicial system running as efficiently as possible.
There are small measures in the Bill with which I certainly do not disagree. They will provide a practical message in regard to what has been happening in reality and to the appointment of the judiciary through the Lord Chancellor’s services, as it will now be, as opposed to through the Prime Minister. In many respects, I am more interested in the review that is now taking place to ensure that the system works as efficiently as possible.
I also want to touch on part 1 of the Bill, which for the first time will put the civil service on a statutory footing. Some might say that we have waited quite some time for this measure—since 1854, in fact. I put it to the Minister of State, Ministry of Justice, the right hon. Member for North Swindon (Mr. Wills), that it is such a symbolic change, as well as a fundamental one, that it is surprising that it was meshed with other measures rather than put in its own, stand-alone civil service Bill. We should have had a separate Bill, but if the provisions are here in this one, they should be supported. They enshrine the core values of the civil service, and will go some way towards protecting its independence.
The provisions leave the door open on the issue of retribution towards whistleblowers in the civil service, however. That issue was touched on earlier, and I hope that we will be able to discuss it in Committee, to determine whether the right protections and independence are available to all members of the civil service, particularly when those actions are taking place. The provisions are an important part of the Bill and, although I would have liked to see a stand-alone civil service Bill, I welcome the fact that the Government have moved forward in this way.
Does the hon. Gentleman agree that most civil servants are absolutely delighted that this is finally happening? Does he not wholeheartedly welcome the fact that, although it has taken many Governments and a long time to reach this spot, we have finally reached it?
As I have said, it is an extremely important part of the Bill. The provision is long overdue, but I agree with the hon. Lady that putting the civil service on a statutory footing represents an extremely important step forward for civil servants. My point was that because of its importance it should have the status of a stand-alone Bill, so that when we look back through the legislation, we have something to hang our hat on and say, “That was the Act that set in stone the statutory footing of the civil service.” It should be enshrined in that way. We will have to make do, however, with what we have got.
The Bill is modest and could have gone so much further. Indeed, the Justice Committee itself deemed it a disappointment in not going further. We have heard from many Members this evening about the opportunities that the Bill has missed. There remains concern that it will still be hard to get all its provisions on to the statute book, but that should not stop us from trying to get some important measures through. I hope that we can develop some of these arguments further in Committee. I join the Lord Chancellor in looking forward to the untimed Report stage, which I know he has committed himself to. I hope that it will give us enough time to debate some of the wider measures discussed this evening more fully on the Floor of the House.
I rise to cover two aspects of this subject—one included in the Bill and one not. Let me start with part 7, which deals with arrangements surrounding the Comptroller and Auditor General. I had the pleasure and privilege of serving on the Public Accounts Committee for two years, so I have some familiarity with the splendid work undertaken by the Comptroller and Auditor General and by the National Audit Office, which supports him. I believe it is appropriate for this Bill to cover some of the arrangements for the hiring and firing—if that is the right way to put it—of the Comptroller and Auditor General, so I welcome part 7.
Needless to say, the Bill appears to have missed one or two aspects, which the Lord Chancellor, who I see in his place, may be able to pick up in case I have misinterpreted the clauses that relate to my concerns. The first is the appointment itself. Clause 37 covers eight aspects of the office of the Comptroller and Auditor General and subsection (7) states that the
“person appointed holds the office for ten years.”
It is entirely appropriate to have a time limit on the appointment, because, although I am not casting aspersions on previous incumbents, it became apparent that there was no time limit only when Sir John Bourn reached an age when people were starting to wonder whether there was an appropriate point for him to retire; he decided to do so when he was, I think, 74. Having a 10-year appointment is thus entirely appropriate. The question it gives rise to is: in what circumstances should an incumbent retire?
Provision is made for the incumbent to offer his own resignation, and Her Majesty, through an address from both Houses of Parliament, can also accept his removal and replacement by somebody else, but there is also a third eventuality, which the Bill does not address. That is that, if the incumbent reaches a certain age and becomes infirm, soundness of mind might become an issue—perhaps not to the incumbent, but to those who have to work with him or her. I have found no provision in the Bill for that to be taken into account with regard to a figure of such seniority within the accountability structure of the civil service and Government of this country. If the Lord Chancellor has any inspiration while I am speaking, or perhaps later, during the wind-up speeches, he might like to address that point.
The second issue I want to deal with relates to clause 38(8).
If the hon. Gentleman looks at clause 41, which is headed “Resignation or removal of the Comptroller and Auditor General”, it might set his mind at rest. It states:
“Her Majesty may remove from office the person who is the Comptroller and Auditor General on an address of both Houses of Parliament.”
That is an accepted procedure that also applies to other senior posts, so I hope that it provides the hon. Gentleman with some reassurance.
I have read that clause, and I referred to it earlier, but if the Minister is telling me that that is the form of words used for dealing with the eventuality that I identified, I take some reassurance from what he has said.
The Minister may well be able to help me with my second concern, too. As I was saying, it relates to clause 38(8)(b)(iv), which requires
“the National Audit Office to monitor the carrying out of the Comptroller and Auditor General’s functions”.
Unless the Bill envisages a change in the relationship between the Comptroller and Auditor General and the National Audit Office, what the clause suggests is that the National Audit Office—of which the Comptroller and Auditor General is, in effect, the chief executive—should be the body to monitor the effectiveness of its own chief executive. That seems to me to set up a relationship that could give rise to conflict and confusion. In most organisations an entity other than the chief executive monitors the chief executive’s performance, and that entity is normally the board or governors of an organisation rather than the body of which he is chief executive. Again, I may be missing something, but I invite the Minister to respond to that concern as well.
The third aspect of the relationship about which I feel some concern appears in clause 38(8)(b)(vi), whereby the National Audit Office and the Comptroller and Auditor General are charged with developing a code of practice that deals with their relationship. Here we have the National Audit Office monitoring its own chief executive, and having to agree with that chief executive the code of practice according to which it would undertake its monitoring role. The provision seems to me to have been ill thought through, and I hope that either the Minister will explain what it means this evening, or an explanation can be given in Committee.
I am also concerned about omissions from the Bill that relate to British citizens living overseas. Two particular categories concern me. The first consists of those who are already disfranchised by our present arrangements for participation in general elections in this country. Those who have lived overseas for more than 15 years are disfranchised, as the Minister mentioned when he appeared to be provoked by my intervention on the hon. Member for Cambridge (David Howarth) to point out that the issue had been discussed in the Chamber before. Indeed it has, but I think that the Minister may have been a bit hasty in leaping to his feet to deny that there were many people in that category, and to appear to deny that many other countries had more restricted arrangements than ours.
In the Minister’s defence, I accept that it is hard to get a handle on the numbers. The Foreign Office will reply to parliamentary questions, as it has from time to time. I believe that it produces an annual estimate of the number of British citizens who live overseas, and it is around 13 million.
I am sorry if I have misunderstood the hon. Gentleman. Is he referring to people who are not on the electoral register because they have lived overseas for a certain period—which, under the existing provisions, renders them ineligible to be on the register—or is he referring to people who have a right to be on the register because they have not been expatriates for the period concerned, but the registration process has not caught up with them for some reason, and we have not been diligent enough in some respects? Which of those is the burden of his accusation, or is it both? If he can clarify what he has said, I shall be happy to give him as much reassurance as I can when I wind up the debate.
I am grateful to the Minister, who is being very fair in trying to get to the bottom of my concern. The short answer is that both categories exist, and in fact there is a third, with which I shall deal later. At the moment, I am focusing on those who are already disfranchised as a result of decisions made in the House.
I may be about to repeat remarks I made in the previous debate to which the hon. Gentleman has referred, but I do not accept the 13 million figure. That seems to me to be enormous, and probably includes the £10-passage people from the 1950s. The number of ex-pats registered in a typical constituency is pitifully low, and of those who are registered the number who use their vote is lower still, so what is the point of this?
I completely agree on both counts. The number of people who participate in our elections from overseas is pitifully low, but there are reasons for that, and they are built into the system we as a House have devised for allowing such participation. I shall come on to that.
The 13 million figure includes some 3 million to 4 million of British national overseas passport holders who received their passports at the time when the Hong Kong colony was handed back to China, so they can be struck out of the 13 million. That gets us to a figure somewhere under 10 million. That figure is made up of estimates provided by each of our principal missions overseas as to how many British citizens are resident in the countries where they are based.
This is an important point, and the hon. Gentleman will know from previous exchanges and correspondence with him and other Members that the Government take it extremely seriously. Every step we have taken in terms of electoral administration has been to make sure the register is as comprehensive and accurate as possible. Registration is key to that, including the registration of British citizens, wherever in the world they are, who are eligible to vote, subject to the statutes of this House. As that is crucial, will the hon. Gentleman be clear about these figures, because they are huge? As my hon. Friend the Member for North-West Leicestershire (David Taylor) has said, they are very significant figures, and I hope the hon. Gentleman will agree that the methodology is also very important. I would therefore be very grateful if he would let the House know exactly what question he asked of those missions and exactly what the reply was, as well as what methodology they used to reach their estimates, and whether it was the same for each mission.
I will be very happy to provide the Minister with the specific Hansard references for the parliamentary questions that were asked, but I do not have that information to hand at present. When he looks through his files and I provide him with the answer to his question, I am sure he will find that these estimates are made by foreign missions and given on an annual basis to the Foreign Office, which supplies the figures.
These are not the numbers of people who are eligible; I completely accept that. They are the figures for the overall quantum of British citizens estimated to be resident overseas at any one time. That includes both the currently enfranchised and those who have lived overseas for more than 15 years and who are therefore by current rules disfranchised. It is of concern to me that that large category of an indeterminate number of people—I think we can all agree that many of the foreign missions do not know how many people are resident overseas, but that they estimate the figure—is currently disfranchised from participating in domestic general elections or by-elections to this place. They are also, in most cases, disfranchised from voting in the national elections where they happen to live, so they are, in effect, electorally non-existent. That seems to me to be fundamentally unfair, unjust and not in accordance with the principles of democracy that this House likes to uphold. It is a great shame that that issue has not been addressed in the Bill.
The Minister said that many other countries have restrictions similar to ours in respect of the point of enfranchisement. I accept that the current rule is that if someone spends 15 years away they lose their right to vote. However, from answers to parliamentary questions and research I have conducted, I have found that not many other countries have voting rights more restrictive than ours. Within the European Union, I believe there are three: Malta, Cyprus and Denmark—and it is questionable whether Ireland has more restrictive rights than ours. That is a very small number of countries that provide a shorter period for which their nationals can continue to vote in their home country.
The hon. Gentleman is making an important point. I wonder whether he would remind the House that it has examined this issue on several occasions. He will be aware, from his careful research, that the House decided to vary the period after which expatriates are no longer eligible for registration. Will he remind the House of the arguments used to reach the current limit? Will he give his own assessment of the arguments made at that time?
The arguments took place before I was a Member of this House. I have, of course, read some of the debates, but I do not think it would be right for me to rehearse all those arguments, because they range over a large number of topics. I should say that one of the main arguments used was that once people have left this country, they no longer pay tax here. That is not true; a large number of expatriates continue to pay tax in this country—for example, tax on their pensions or tax on property that they may have here. A large number of these people also have family connections here; even if they themselves have severed their links with this country, their families may well be educated here.
The Minister asks my hon. Friend what the arguments were when the House decided this. The Minister talks as if the House took a wholly free decision to reduce the period from 20 to 15 years. That is not how I recollect it; the Government produced a proposal and, as they had a majority in this House that was well into three figures, they drove it through. There was no suggestion that there was a free, independent and wholly uninhibited debate on the subject.
I am grateful to my right hon. Friend for that comment. He has the benefit of having participated in those debates, whereas I do not. To develop my theme a little further, may I say that not only are the vast majority of EU countries much more liberal concerning the rights of their citizens to participate in their national elections—in essence, once a French citizen always a French citizen, and once a German citizen, always a German citizen, and, as such, those citizens are allowed to vote in their elections—but so, too, are other members of the OECD? The only country, aside from those that I have mentioned, to have more restrictive voting rights than this country is South Korea, and it has a particular reason for that.
Let me take the hon. Gentleman back to the point that my hon. Friend the Member for North-West Leicestershire (David Taylor) raised with him. Since this arrangement for overseas voting was first introduced—in, as I recall, the Representation of the People Act 1983—[Interruption.] Hon. Members say that that was done by consensus. I cannot remember what the final vote was, but I do recall some intense arguments in this House. This was at the high point of Baroness Thatcher’s Administration and Labour Members were concerned—I make this point in a serious way—that along with the fiddling of unemployment statistics and much else besides, an effort was being made to fiddle the franchise. I shall return to the point very quickly, Mr. Deputy Speaker. In the event, the surprise for Members on both sides of the House has been—this applies to those who have been resident abroad for only three or four years, let alone 15 years—how few people have bothered to use this right. The proportion is far fewer than the 65 to 70 per cent. who turn out from a UK base.
I am grateful to the Lord Chancellor for making that point, because it takes me on to the second category that I wanted to discuss, which comprises 2.5 million people who we believe are eligible to vote; the Foreign Office believes this and I accept its figures, although they are still estimates. I am talking about the British expatriates who have lived abroad for less than 15 years. As he correctly says, a small proportion of that number participate in elections in this country, so I will return to the relevant question that was posed by the hon. Member for North-West Leicestershire. The reason why very few of those people participate is because we make it almost impossible for their vote to count. At the previous general election, in 2005, 17,000 British expatriates participated; I believe that that was more or less the number who were registered, so the turnout among those who had bothered to register was quite high.
Today—as at the last time of calculation—there are only 14,000 such people, as evidenced by a response to a parliamentary question. Only 14,000 people, out of 2.5 million, are registered. We have to ask ourselves why. The Lord Chancellor and his colleagues will say that it is because they have no interest—they have left the country, they cannot be bothered and they are no longer engaged with the political process in this country. It is possible that a proportion of the 2.5 million feel that way, and that that proportion is similar to the proportion of the domestic population who, regrettably, feel sufficiently apathetic about our election process and politics in this place not to participate in voting.
Let me explain one or two of the practical difficulties of participating in a general election in this country for those who happen to live abroad.
Does my hon. Friend not agree that if one is living abroad, one feels a sort of disengagement and feels isolated from realpolitik in the UK? Despite the fact that so many people have Sky boxes—they are illegal, I might add—in Spain and elsewhere, they cannot feel involved and do not feel the need to get involved in a general election.
As I was saying earlier—and as my hon. Friend will have heard—I think that there is a case for saying that some of our citizens abroad feel disengaged. However, I am not seeking to address that audience—I am seeking to point out to the Minister that the deficiency of this Bill is that it does not address the practical steps that could be taken by anybody who wants to encourage those who have the right to vote from overseas to do so.
The hon. Gentleman has been very generous in giving way, and I appreciate it. He raises an important point, which is difficult and complex. He is probably aware that 3 million to 3.5 million people in this country are eligible to vote but are not on the register. There are all sorts of problems with that, and it is enormously difficult. Most electoral registration officers are very diligent in trying to get everybody who is eligible on to the register. We have laid duties on them and given them new powers, more or less with the support of the whole House. Those duties include sending out regular canvass forms and making house-to-house visits. If we are to believe the Leader of the Opposition, we live in an age of austerity. I hope that the hon. Gentleman—perhaps he can confirm this—is not suggesting house-to-house visits for the 2.5 million expatriates to whom he has referred.
I am certainly not, but I am very glad that the Minister raises that point. One challenge for any Administration, and for any individual electoral registration officer, is identifying where the people who are eligible to vote live. Were we to follow the practice that the Minister suggested that I might be heading towards, we would have to knock on the doors not just of expatriates but of everybody who happens to live abroad. We do not know where they live. The Foreign Office missions do not keep a full register of British expatriates resident in their country. Every ambassador to whom I have spoken on this subject—I have touched on it with a number of them—says, “If only we could have a system whereby we could identify where expatriates live.” They would like to have access to such a system so that they could fulfil some of their statutory duties in the event of an emergency, or whatever.
We require our citizens overseas to register annually. Citizens within the country are, as the Minister has suggested, sent an annual reminder of who is on the register for their property, but those who are resident overseas are not sent a reminder. If they do not bother to register or if they are not prompted to do so by some diary note that tells them that their registration will fall due, they fall off the register. That is a major inhibitor to people remaining on the register. People have to register every year, whereas many other countries have registration that lasts for the duration of their Parliament or for a fixed period of time. Some countries have 10-year registration; I think that that would be innovative and would deal with the problem.
The second practical problem for expatriates is that they have to have their identity confirmed on the registration form by another British citizen who is also on the register. As we know from our earlier discussions, only 14,000 such people live overseas. Many people who might like to vote while living overseas cannot, because they cannot find anybody who meets the criteria and is eligible to certify that they are who they say they are.
The Government put forward a consultation on individual voter registration that was due to be published last June. We have not heard the results yet, so the debate has been moved not one step further. The fact that the Bill says nothing about voter registration is another deficiency, and a missed opportunity.
Expatriates have the benefit of a very clear identifier. I am not allowed to use audiovisual props in the Chamber, but I am holding a British passport in my right hand. It has a single-number identifier, and allowing expatriates to verify that they are British by use of their passport number would overcome the problem of identity confirmation. I accept that there are some data protection issues, but unfortunately the Government have chosen not to go down that route, even though it would make it easier for people to register and therefore to vote.
I have tried the patience of the House and Ministers perhaps a little too long this evening, so I shall end by saying that people abroad who register to vote have to do so remotely. Most do so by post, which works well in the UK. Participation in postal voting by citizens resident here is rising each year, and I welcome that.
I am grateful to my hon. Friend for referring to armed services personnel. The Government, with the Ministry of Defence and service chiefs, have taken steps to increase significantly awareness of voting among armed forces personnel overseas, but there is no doubt that operational risks are involved. We have all heard the rumours that British Forces Postal Services in theatre are at risk of being closed down for security reasons. That would mean that members of our forces currently serving in Afghanistan might well be denied a vote if a general election were to take place very soon. That would obviously be a tragedy; if possible, our servicemen and women should not be deprived of the opportunity to vote.
My point about postal votes for people overseas has to do with the date by which candidates are able to withdraw their nominations from the ballot. That date is so close to the day of the election that ballot papers cannot be printed—and therefore posted overseas—until 11 days before the ballot. The result is that ballot papers arrive overseas approximately one week before polling. Many people cannot be certain, therefore, that their ballot papers will get back to the relevant constituency in time to be counted, even if they sign them and put them back in the post on the same day that they receive them.
The hon. Gentleman is talking about the alleged difficulties of registration. However, my registration authority is one of many to register voters by text or email, so that is not a problem. Secondly, on the question of returning ballot papers, the fact that expats retain strong links with this country means that they will undoubtedly know people in the constituency where they are registered whom they can trust to cast a proxy vote.
I agree with the first part of what the hon. Gentleman said, in that it would help if expats could register using modern technology. However, they are not allowed to, as they have to complete the form. My understanding is that the Electoral Commission does not allow electoral registration officers to accept registration from overseas by electronic means, because it is not satisfied with the present security arrangements. The technology is there, but it is not yet being used.
On the hon. Gentleman’s second point, the evidence suggests that after five or 10 years, many people who move abroad may not have family or friends in the area they left. For instance, 18 or 19-year olds who go abroad to university may decide to stay overseas; although they might have been eligible to vote as teenagers, they no longer have people they can call on to exercise their vote for them.
However, the hon. Gentleman is right to say that a proxy vote is the only way that expat citizens overseas can be certain that their vote counts. Asking people to participate only by way of proxy invites them, in effect, to give away their vote. That is a difficult thing to ask people to do remotely.
I conclude by regretting that the Bill does nothing to ease the participation of eligible voters or to facilitate voting for many British citizens who are disfranchised at present. That is a great shortcoming and failure of fairness in the Bill.
I am pleased to welcome the Bill as a further stage in constitutional reform. This Government have a great record in bringing about constitutional reform, most notably in respect of devolution. When they came to power in 1997, one of the first things that I as a Welsh Member was involved with was bringing devolution to Scotland and to Wales. I remember feeling that it was an exciting occasion, notable for the fact that the Government were devolving power away from the central state. I was pleased to be here and to be part of that process.
As the Chairman of the Justice Committee said, it was easier to take that process forward in Scotland than in Wales, because in Wales there was less history of different bodies working together. There was strong support for devolution in Scotland, whereas in Wales people had to be convinced before they would agree to it. Since then, there has been much greater acceptance of devolution and a greater feeling that this is the right way for Wales to go.
Devolution has now been accepted in Wales, and a convention is in place and looking at future powers for the Welsh Assembly. There is nothing in the Bill that further extends powers to Wales, but I would like the Government to agree to a referendum on further powers if that is requested by the Assembly in future. The progress of devolution in Wales has been steady and is moving to the point where the people of Wales want more power over their own affairs. Although there is nothing in the Bill to take that further, I see it as a further step in constitutional reform.
The hon. Lady is making a powerful point about a missed opportunity. The Bill could have dealt with referendums, including one on increased powers for the Welsh Assembly. Could it not also have included a right to a referendum on the Lisbon treaty, for example, or on the European Union?
I thank the hon. Gentleman for his intervention. I would have liked the Bill to include provision for a referendum for Wales.
I shall deal briefly with two parts of the Bill, the first of which is reform of the House of Lords. Most parties in this Chamber support a wholly or almost entirely elected House of Lords. The measures in the Bill which relate to the House of Lords are another step in that direction. It is good that there will be an opportunity for Members of the House of Lords to resign their seats. Some Members of the House of Lords were called the people’s peers. The history of their attendance and their involvement in the House of Lords suggests that some of them do not show a great deal of commitment to that House. They should have the opportunity to resign their seats. There are notable exceptions—in particular, Baroness Finlay of Llandaff, a close neighbour of mine in Cardiff, who has been an outstanding Member of the House of Lords and an outstanding people’s peer. Others have also made huge contributions, but recent research shows a huge variation in that group’s attendance, and there should be an opportunity for some to leave. Many such peers would probably like to leave, so the provision’s inclusion in the Bill is a good thing.
The Prime Minister can appoint someone to the House of Lords to take up a ministerial appointment. It happens frequently and has always happened under all Prime Ministers, but there is an issue if that Minister resigns after a certain period but is left with a peerage and a seat in the House of Lords indefinitely. That should be looked at. Many people who were appointed in that way were brought in because of their expertise, and they have a lot to contribute, but they may not want to take on the role of a Back-Bench peer, so the opportunity for them to resign will, again, be a very good thing.
Getting rid of the remaining hereditary peers is another step towards a wholly or almost wholly elected House of Lords, and I hope that that measure will be in all parties’ manifestos at the next general election. It has taken a long time to reform the House of Lords, but there is one big block on any reform: the legislation has to go through the House of Lords itself. Reform has taken longer than many of us would have wished, but we have moved further down the road.
I turn now to the issue of the Prime Minister’s ability to appoint people to the House of Lords as Ministers, and whether those Ministers should have to be Members of either House. Is there a case for the Prime Minister being able to appoint people who do not have to be Members of either House, but who could come to the House of Commons to account for their actions? It is unsatisfactory that Secretaries of State who sit in the House of Lords cannot come here to answer to us in the House of Commons, so certain things need to be looked at and there should be further change.
I made it clear in an intervention that I welcome the Bill’s civil service provision. We have been waiting for a stand-alone civil service Act for some time, and the inclusion of the provision is a good thing. I particularly welcome the establishment of the Civil Service Commission and the requirement for appointments to the civil service to be open to competition and made on merit. It has become more customary in the civil service to advertise appointments externally, and more customary for people from the wider community to be able to apply. However, that is certainly not true of all appointments, and it is difficult to obtain a civil service that is representative of the population if many appointments depend on internal civil service recruitment. The range of women and people from black and minority ethnic communities in the civil service has improved in recent years. However, there is no doubt that the requirement that jobs should be openly advertised and open to competition, and specific efforts made to reach groups that are less well represented, is bound to improve the situation in the civil service by making it more representative of the country as a whole.
I welcome the Bill as another step in the constitutional reform that this Government have done so well on—it will take us further along that track.
It is a pleasure to speak at the perhaps somewhat premature end of this debate, which has been reassuring to some extent but also slightly depressing. It has been reassuring because debates on Bills of this sort bring out the best in the House, in many ways, and the tone has been reflective, thoughtful and serious in addressing very important issues; but depressing because it has been poorly attended, especially by Labour Members, and because so much of it has been about what is not in the Bill, not what is in it.
That reflects what my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve) said at the outset when he rightly dilated on the grandiloquent claims made by the Prime Minister at the inception of his premiership about how he was going to bring about a great constitutional renewal: he talked about a new settlement using very fine, splendid and high-sounding phrases. We have been through several iterations of draft Bills, White Papers and Green Papers along the way. As my hon. and learned Friend said, the mountain laboured and brought forth a mouse—not a ridiculous mouse, as the phrase generally has it, but a rag-bag in terms of constitutional reform. To adapt the phrase, it is a modest little Bill with much to be modest about.
We warmly welcome the civil service parts of the Bill, which are my principal concern. This legislation has been talked about for a very long time; I think that the commitment was made by John Major’s Government in the late 1990s. It has been a long time in gestation, and here it is, given birth to at long last. We hope that it can come into effect shortly.
It is interesting how much of the debate was not about what is in the Bill, but what is not in it. The hon. Member for Cannock Chase (Dr. Wright), in a typically intelligent, temperate and thoughtful speech—he was very unpartisan in his approach, as we have come to expect—talked persuasively about the need to adopt a holistic approach as regards constitutional reform. He referred to the dangers of making piecemeal changes without giving sufficient thought to the ramifications of change and the interaction of different parts of our mysterious constitution, and the need to be looking at these changes in the round. We would all agree with that. We look forward with keen anticipation to the ex cathedra pronouncements from the Public Administration Committee, which he chairs, on the role of the House of Commons and its relationship with the Government.
The hon. Member for Cambridge (David Howarth) was another who talked about what the Bill lacks. As one would expect, he spoke about the need for electoral reform; we did not agree with him, but he made his case and we listened respectfully. He also talked about the hole in the Bill that might have been filled by provisions on party funding. The need for such provisions persists as strongly today as it did when the Hayden Phillips discussions were embarked upon three and a half years ago, when Tony Blair committed the Labour party to being willing to make the profound changes needed to tackle the abuse of union funding, which has made it difficult to make serious progress on party funding reform in the mean time.
I am sorry that I missed nearly all the speech of my hon. Friend the Member for Harwich (Mr. Carswell), but I suspect that he talked about the case he has eloquently been making for recall provisions for Members of Parliament. They may not always be comfortable with such provisions, but he is right to make the case for them.
There has been a certain amount of discussion about the provisions on House of Lords reform. The Lord Chancellor’s defence of the proposals was interesting. I do not believe that anyone would claim that the current arrangements are in any way what we would want to start with. No one would design the system to look as it currently does. It is a vestige, a residue, of the unfinished reform of the second Chamber embarked upon by the Government 11 or 12 years ago.
The point is that the system was deliberately left as an untidy remnant, as an earnest of the intention to pursue full reform. It was meant to be an irritant, and it was deliberately and explicitly left in place as such by the then Lord Chancellor, Lord Irvine, to hold the Government’s feet to the fire and ultimately make them deliver reform of the House of Lords. Parliament is entitled to treat it as a breach of good faith for the Government now to come along, without any justification or any serious case for the steps taken in the Bill being necessary, and remove the impetus on a Government to persist in pursuing long-term reform. The House is entitled to resent that.
I wish to say a little about part 1, which deals with the civil service and is effectively the first half of the Bill. We welcome it, and it is long overdue. The system that has existed for so long—a civil service that is independent and impartial, and to which an incoming Government cannot make wholesale, sweeping changes in personnel—is a great strength of this country. There has been a debate going on throughout my political lifetime, and I suspect for a long time before, about whether we should change that and introduce scope for much more appointment, along the lines of the American system. There, the senior echelons are removed and appointed by an incoming Administration. We do not believe that we should do that, because the system is capable of being made to work extremely well.
We are pleased that the Bill will entrench the duty of impartiality, and we accept and support the case that has been made that the existence of special advisers, who are now desirably to be controlled by a code protected by statute, provides civil servants with a protection against their impartiality being eroded by Ministers. However, if we are to put into statute an obligation on civil servants to be impartial, there should ideally be a symmetrical requirement on Ministers to respect that impartiality.
There were ripples of unease at the weekend when The Sunday Times reported that Lord Mandelson had sent a letter around Whitehall that appeared—I would always want to give the noble Lord the benefit of the doubt—to suggest that he was urging the civil servants who form the Government’s communications operation to deploy what are effectively Labour party slogans in the sensitive period in the run-up to a general election. That would risk abusing civil service impartiality and it is right that the head of the civil service should treat very seriously any attempt to erode it. Governments will always test those boundaries—that is kind of in the nature of things—but it is important that the Cabinet Secretary, who is the head of the civil service, is robust in resisting it. If the Bill goes through before the general election, as we hope it will, there will be some statutory reinforcement of his role in protecting that impartiality.
It is important that we understand what is meant by this concept of impartiality. It obviously does not mean independence in the sense of civil servants being empowered to do what on earth they like. The obligation of impartiality is to deliver what the lawful Government of the day lawfully set out as their policies. It is important that Ministers listen to officials’ advice. They should seek it confidently, and be willing to challenge and interrogate it. They are not obliged to take it, but they should always seek it and hear it.
I recently spoke about the episode in the life of this Government when the Prime Minister, when he was Chancellor of the Exchequer, sought to introduce his tax credits scheme. It is now well attested that officials in the Treasury and the Inland Revenue advised very strongly that his proposal could not be administered without risk of fraud, and almost more importantly, of very serious error. He persisted and said, “I don’t care. This is my policy. You’re the civil servants, you go and deliver it.” He ignored the advice. The result was a system that has caused immense distress and human misery to hundreds of thousands of hard-working people on low incomes, who suddenly found themselves traumatised—that is not an exaggeration—when they received demands from the Revenue to repay several thousand pounds in overpaid tax credits.
Those hard-working people had done their best to do the right thing. That episode was the result of a Minister—an arrogant Minister, I would say—not listening to the advice that he was given by civil servants, who were not being political but were simply giving impartial advice about the effects of implementing a particular policy in a particular way.
Does my right hon. Friend not illustrate the difficult balance that Ministers must strike? They quite rightly want to drive through Government policy, but at the same time they must listen to civil servants’ impartial advice and to special advisers, who quite rightly will have the ideology of their party in mind, but not perhaps the practicality of implementation. That is why it is important that Ministers have the ability to make good judgments, which is difficult when they are given such contradictory advice.
My hon. Friend makes a good point. On the tax credits episode, the special adviser in the Treasury, who was notoriously the intermediary between the Chancellor and Treasury officials, is now Secretary of State for Children, Schools and Families. He was described on the radio yesterday by his hon. Friend—that may be the wrong way to put it—the Member for Huddersfield (Mr. Sheerman) as a “bit of a bully”. When pushed, he said, “Well, actually, he is a bully”, not being inclined to wrap things up. That sort of arrogant approach is, “No, we know best, don’t bother us with these pettifogging details about how to implement this, just go and do it.” The consequence has been a lot of misery for many hard-working people and families on low incomes.
The hon. Member for Cannock Chase (Dr. Wright) referred to the article that appeared in The Times on Friday, which seemed to suggest, in a rather hysterical way, that we had secret plans—even though I had announced them, admittedly in the obscurity of the Conservative party conference, 10 days previously—that amounted to a politicisation of the civil service. That is absolutely not what our proposals would involve. I was heartened to say that the report of what I was apparently proposing received the endorsement of the hon. Member for West Bromwich, East (Mr. Watson), a notable blogger, who published in his blog on Friday a post headlined, “In praise of Francis Maude”. I found that most encouraging—these days one welcomes praise and support from wherever they come. The hon. Gentleman is in a position to know as he was until recently a Minister in the Cabinet Office with responsibility for civil service matters.
It is important to stress that we are not talking about giving Ministers the uninhibited right to hire and fire civil servants. That would be in conflict with the provisions and protections that will rightly be put in place by the Bill, but Ministers who are rightly accountable to this House for the conduct of their Departments must have the ability to ensure that their policies are delivered. This is not about hiring and firing officials, but about building on a broadly beneficial innovation that this Government introduced—the departmental boards. These did not exist when the Conservatives were last in government, and have since been introduced by this Government. It is a pity, however, if—as in most cases—these boards are attended only by officials. Some are or have been chaired by Ministers, and we think that that is the right approach, because by bringing together politicians and officials they provide an opportunity to create a genuine collective leadership that can be really powerful in giving direction, purpose and energy to a Department. The boards have non-executive members, but at present some 90 per cent. of departmental and public sector board members come from a public sector background. There is nothing wrong with that, but it is a missed opportunity to bring in non-executive board members with serious experience in running big commercial organisations. Such people would be able to transfer their skills and experience to interrogate proposals and check up on their implementability.
We have said that, in extremis, we would expect non-executive members of a departmental board to be able to recommend to the head of the civil service and the Prime Minister that a permanent secretary who was an obstacle to delivery of the Department’s objectives should be removed. Without such a last resort power, the proposal would be seen to be window dressing, and the kind of people who could deliver great benefits for the taxpayer and the users of public services by improving their efficiency and quality would not be attracted to make that contribution.
I am listening to the right hon. Gentleman with care on this issue. I have not done a statistical analysis, but in the Foreign Office there were two non-executive directors, both drawn from the private sector and both very good. I am sure that, whatever the rubric said, had they thought that the permanent secretary, or indeed the Foreign Secretary, of the day was beyond the pale—which was in fact the opposite of the case—they would have told the Prime Minister and the Cabinet Secretary. I have also seen people with wider public sector experience who have been just as good. Surely the crucial point is not to take an ideological view. We need to look at the qualities that people can bring to these jobs, their independence of mind and their experience.
I agree with much of that, and I am delighted to have the Lord Chancellor’s endorsement of our general approach. It is most heartening and encouraging. I accept that many of the non-executive board members are independent and have lots of experience, and that their presence is very beneficial. I certainly would not say for a second that we should not have people with a public sector background on these departmental boards or public body boards. There are many benefits to be had from that.
This is a time of great financial constraint, however, and it will be imperative for the Government dramatically to sharpen up their financial management. That constraint will definitely apply, whichever party wins the next election, and the Government will have to ensure that the taxpayers’ scarce pounds are translated into the best possible public service. It would be a great wasted opportunity, therefore, not to recruit to those boards people who are used to driving change through big private sector organisations. At the moment, to a limited extent, that happens, but it could be much enhanced.
This has been an interesting, reflective and thoughtful debate. We are concerned about parts of the Bill, but are keen for it to make progress. We support it, therefore, but with some exceptions.
We have heard many serious and thoughtful speeches that have treated our constitutional affairs with the dignity and respect that they deserve. The right hon. Member for Horsham (Mr. Maude) made such a speech. I was particularly interested in his comments about the civil service, most of which we on the Labour Benches agree with. Sadly, the speech of the hon. and learned Member for Beaconsfield (Mr. Grieve) was not one of those serious and thoughtful speeches—my regret is sincere, because I have great respect for the hon. and learned Gentleman. I suggest to him that abuse is no substitute for argument, and his memory no substitute for the facts.
I shall substantiate my point.
All right, I will.
The Minister said earlier that I was wrong about the national anthem, but in fact I was spot on. Lord Goldsmith, who was asked by the Prime Minister to carry out a review of Britishness, recommended that we might wish to change our national anthem. In one clause of the review, he said that he felt that one of the verses from the 18th century might be regarded by the Scots as offensive. [Interruption.] Indeed, it might! It is all there. The Minister challenged me on that point, but I got my facts right.
It was out of great respect for the hon. and learned Gentleman that I tried to persuade him not to intervene on me on this point. Had he remained seated, he would have heard what those facts are. He said—I think Hansard will bear this out—that the Prime Minister, not Lord Goldsmith, made those comments. Had the hon. and learned Gentleman done a little more research in the interim, he would have discovered that Lord Goldsmith, when he made those comments, was not a member of the Government. I ask the hon. and learned Gentlemen to listen to what No. 10 Downing street said, because he could have found it out just as well as I did before he made his speech. This is precisely what I meant. At the time of the review, Downing street said:
“This does not reflect the Government’s views. We are proud of our national anthem and the traditions it represents”.
I have already made the point that the hon. and learned Member for Beaconsfield fundamentally misrepresented what the Prime Minister said on that subject. He could have checked it out, but he did not. Lord Goldsmith was reflecting views that were given to his independent commission.
I know that I have a bit of time, but I want to make some progress.
No, I will not give way yet. I will give way many times, but—[Hon. Members: “You’ve only just started.”] I have indeed only just started and I will give way many times, but I want to address a fundamental point. We heard several times from Conservative Members, starting with the hon. and learned Member for Beaconsfield, that the Bill was a mouse—I think that “a modest Bill” is the phrase that the Conservative Whips put out and which was repeated many times. The substance—[Interruption.] I am only reflecting what Opposition Members said.
No, I will not give way, because I want to address the point, if I may. I will give way to the hon. Member for Cambridge (David Howarth) and then to the hon. Gentleman when I have gone through this list, but first I would like them to listen to some facts, because facts were sadly absent from the speech that the hon. and learned Member for Beaconsfield gave. He spoke about 12 issues on which the Prime Minister made pledges in July 2007. Let me run through them.
The first is the power of the Executive to declare war. The draft Commons resolution on the processes for the deployment of armed forces has been the subject of extensive discussion. It has been prepared and will be presented shortly. On the power to request the Dissolution of Parliament, the Modernisation Committee is conducting an inquiry into Dissolution and recall, and quite rightly so. The Government proposed to the Committee in March 2008 that when the Prime Minister proposes the Dissolution of Parliament, he would have to have a vote on that in the House before it could go ahead, so there has been progress on that too.
On the power over the recall of Parliament, the Modernisation Committee—the correct place for this to be considered—is also conducting an inquiry. The power of the Executive to ratify international treaties without a decision by Parliament is dealt with in the Bill. On the power to make key public appointments without effective scrutiny, measures on that have already been introduced. Proposals on the power to restrict parliamentary oversight of our intelligence services were debated and approved in their entirety by the Commons on 17 July 2008. Proposals for an appointment procedure similar to that adopted by the Commons were also approved by the Lords without debate on 13 November 2008.
On the power to choose bishops, the Government have removed the Prime Minister from the process. There are proposals in the Bill on the power exercised in the appointment of judges. On the power to direct prosecutors in individual criminal cases, the Attorney-General has decided not to make key prosecution decisions in individual criminal cases except if the law of national security requires it. Powers over the civil services are dealt with in the Bill. On the Executive powers to determine the rules governing entitlement to passports, the Government have decided in principle that we will introduce comprehensive legislation on the procedures for issuing passports after an extensive consultation. Draft legislation will be published before that consultation.
I will finish my comments on the 12 issues and then I will give way, but with all due respect to the hon. and learned Gentleman, he is third in line.
The courts already scrutinise the exercise of the royal prerogative of mercy. Twelve pledges were made, and 12 more or less fulfilled, as the record shows. The record speaks for itself.