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After the Bill's elephantine gestation I want to say a few words about its substance. I doubt whether they will affect the wash-up but we can dream. I want to comment, first, on the long-awaited Bill establishing for the first time a statutory basis for the management of the Civil Service. We know that this has been delayed for more than a century and a half-some Members have quoted different figures, but I have my own. I was a member of the Joint Committee that examined the draft Constitutional Renewal Bill, as it then was, which now appears with all the extra clauses on the pick and mix system that we have in this Bill, and with a new Title. I am happy to see that some provisions in the earlier draft Bill are not in this one. For example, the role of the Attorney-General was not ready for legislation and it does not appear in the Bill. It is always a cause for personal rejoicing when something is not being legislated on. On the other hand, I congratulate the Government on the proposed legislation for the Civil Service, which may survive the wash-up.

On the substance of the Bill, it is necessary to look at the different parts separately. Despite the ingenuity of Ministers and civil servants it is extremely difficult to see any common theme. Part 1 is a Civil Service Bill and I declare an interest as a former civil servant. I am glad that the Government have shown discretion in not overloading this part with detail on the role and duties of civil servants. The Bill's formula on this point is simple: the Minister for the Civil Service has to publish a code which will be laid before Parliament that requires civil servants to carry out their duties with integrity, honesty, objectivity and impartiality. That code will form part of the terms and conditions of any civil servant covered by the code. Similar provisions, of course, apply to the Diplomatic Service code that the Secretary of State must publish and lay before

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Parliament. I do not find that controversial. I make that point in case it comes up in the wash.

Perhaps more controversial is the treatment of special advisers. A code will be laid before Parliament which will again form part of the terms and conditions of service of special advisers. It is perhaps weird to read in Clause 7(5):

"But the code need not require special advisers ... to carry out their duties with objectivity or impartiality".

That is specifically stated in the law, which I can understand, but it sits rather oddly in the Bill.

There has to be an annual report on special advisers. So far, so good, but we have a number of questions that we will perhaps not have the time to deal with unless amendments are tabled for the extremely brief Committee stage that we expect. First, how are we to treat restrictions on special advisers' functions? That is an important point. Secondly, should there be a limit on the number of special advisers? Paragraph 296 of the Joint Committee's report suggests that it might be done by limiting the number of special advisers that each Cabinet Minister can appoint. That is a serious point which we may never get to, but I would like to record it.

I turn briefly to Part 2 on the requirement that a treaty should not be ratified unless it has been published and laid before Parliament for 21 sitting days, during which time either House can resolve that it should not be ratified. That reflects the Ponsonby rule dating from 1924, which is generally followed. The Bill provides for a further statement to Parliament explaining why the Government can none the less ratify a treaty when either House has resolved that it should not be ratified. There are special exceptional cases and other elements in this part of the Bill. Obviously this is not a lock on the Government's position, but it is an advantage to formalise a role for Parliament on treaties and in general I support it. It could perhaps be done better but I would like to see this in law. The definition of a treaty is very wide and this again could be open to question-for example, a large number of treaty-like operations, such as memoranda of understanding, exchanges of letters and so on. That is how government is carried on. For example, there is the agreement between the Prime Minister and the United States President in 2006. It was not strictly speaking a treaty at all; it was an exchange of letters that would probably not be covered by this text. There are serious points about how that would be handled, but overall there is a lot to be said for putting in statutory form some greater control over treaty-making and a greater power for Parliament on that matter.

Part 3 covers the referendum on the alternative vote system. As an unelected parliamentarian, I never object to asking the people for their opinion; it seems a very good idea. I have nothing to say about that, but I note that several colleagues are thinking of proposing amendments in relation to voting. For example, I believe my noble friend Lord Ramsbotham intends to table an amendment about prisoners' voting rights. I just mention that to the Minister; we may see it before too long.



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I must move quickly through these various parts of the Bill. I shall certainly not cover all of it, but only a selection. I come to Part 5, which relates to the House of Lords. I am very pleased to see some of the provisions of the original Steel Bill. We were not allowed to have these before, but we are invited to have them now. That is a very good thing. I support the amendment that has been moved by the noble Lord, Lord Steel. I supported the original Steel Bill and it would be good to have a statutory Appointments Commission. Most people have spoken on the House of Lords and I do not wish to speak in more detail about its composition-a subject on which I have heard much said so often. I may now rest on that point.

The other provisions about discipline in the House and the position of those who have been sentenced to various forms of imprisonment or fallen into bankruptcy are perfectly reasonable and in the same spirit as those in the other place. I come to Part 7, on which I have a brief comment. My speech is very brief, really. Part 7 would remove Sections 132 to 138 of the Serious Organised Crime and Police Act and put in effect a much better system for demonstrations in the area around Parliament. It would also set a limit of 300 metres from Parliament, which could be determined as the area in which such demonstrations could still be controlled by a senior police officer. There was a much wider area before, which was a serious mistake. Overall, Part 7 is very much to be welcomed.

I conclude now, but I have noted that the next speaker on the list is the noble Lord, Lord Phillips of Sudbury. I welcome him back. He will be able to recall how calm this House was when he left and contrast it with how we now deal with legislation. That is what we have to put up with. As I said, there are points in the Bill which, in substance, are desirable. I would like to cheer the Minister up by saying that I support some of what is in the Bill and take a positive attitude to those matters. I will not deal further with the question of how the Bill arrived here, or with the process, the deep freeze and all the other things from which we have suffered this afternoon.

8.03 pm

Lord Phillips of Sudbury: My Lords, first, I thank the noble Lord, Lord Williamson of Horton, for those kind words. All I can say is that whatever other feelings are going through my breast, it is a genuine pleasure to come back to such a friendly, civilised place as this. It is a triumph of human creativity to have a place such as the House of Lords. When you are away from it, you appreciate rather more its extraordinary organic functioning; the grace and lack of partisanship; the friendship and warmth; and the willingness to listen to people and have, as far as possible, open minds. I have missed all of that. It is something of an irony that the last time I was on my feet in this Chamber, in the summer of 2006, it was to lay before the House a Private Member's Bill permitting the resignation of life Peers. It was partly the provocation of that provision in this Bill that ultimately forced my wavering hand.

Many have said, very eloquently, that this is not the way to treat a major constitutional Bill. There is nothing to add to that. The one point that I have not

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heard emphasised, and is worth emphasising, was made by the noble Lord, Lord Henley, at the beginning. He said that in the Commons a third of the Bill was not even debated.

If I have learnt even more than I already knew in the nearly four years that I have been away, it is from the quite stupendous number of times that people have come up to me, knowing that I had stood down. They said many things but two prevailed. One was a great respect and regard for this House, over and above the House of Commons. The people of this country appreciate what we do here and the manner in which we do it. They appreciate the intelligence and experience we bring to bear on it.

The other thing that was and is said to me again and again is, "We are completely lost. You legislate so much, so furiously and so complexly that we cannot feed into the process". There is a lack of ability for the public-those who might be inclined so to do-to react to this very important Bill. The lack of opportunity, which will not be there because of the way in which the Bill is being dealt with, is not a small issue. It is part and parcel of the disconnectedness and disaffection that so many of our fellow citizens feel towards this place at this time, quite apart from the sad expenses saga, and so on. I had to make that point.

I will refer briefly to some of the drafting in the Bill. It is interesting. I recently had cause to look at the public Acts of 1906. That was the year that Bonar Law lost to Campbell-Bannerman. The total length of all the public Acts of 1906 is less than that of this Bill. That gives pause for thought. Some of the drafting in the Bill is of extraordinary complexity. We will not have the chance to unravel and improve it in the normal way, as we should. I cite Clauses 54 to 57, which deal with the removal, expulsion, resignation and disclaimer of life peerages, and with Peers convicted of crime, and so on. They are almost impenetrable even to Members of this House. They are not fit for purpose. Had we the time, I think we would have uncovered internal contradictions within those four clauses.

If you suffer from insomnia, take to bed Clause 29 of the Bill. When you cannot get your mind off whatever it is, read subsection (4)(d) of that clause. In trying to understand it, you will surely nod off. I defy anybody to make sense of that subsection. Contrast this with the Bill of the noble Lord, Lord Steel, which is, I am afraid, a stunning indictment of what we have here.

I will briefly say, as many have, that had we had the opportunity to consider the Bill and table amendments to it, many of us would have done so. Many examples have already been given. Why, for example, do we still not have votes for Members of this House? That is not quite true, because the Bishops have them. On what conceivable basis can the Lords spiritual have more temporal power than the rest of us? It is bonkers! We might also, I suggest, have considered putting in a clause which allowed those of us who do not like titles not to have them forced on us. We could simply call ourselves Andrew Phillips MHL-Member of the House of Lords. It could be entirely voluntary. Titles are great for those who want them and, for those who

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want to keep them to their graves, better still. However, for those of us who do not like them, why should they not be voluntary? It might be a small step in the direction of lessening the distance that can exist between us and the public.

I would have liked to have seen reference in the Bill to what has certainly been referred to in the debate-I cannot remember by whom; I think it was my noble friend Lord McNally-a referendum on the composition of this House, with choices. Was not the noble Lord, Lord Willoughby de Broke, the author of that idea? Why should it not be in the Bill? The disagreement between us on the composition of the House is considerable and the public should decide who comprises this Chamber, not us. This is classically an issue for the public.

I wish to make two further points. The first relates in particular to Clause 65 which deals with the appointment of justices of the peace. Noble Lords may remember that the Constitutional Reform Act 2005 removed this power of appointment from the advisory committees under the Lord Chancellor to the Judicial Appointments Commission. A number of us said at the time that that might not be a great idea, and it was not. The commission simply cannot cope with the appointment of JPs. Perhaps the noble Lord, Lord Bach, may not be able to reply tonight, but I should be grateful if he would let us know whether, under the change made by the Bill, the Lord Chancellor will take up that appointment role and, in particular, use local advisory committees-I hope under their present distribution, because there are indications that, as with everything else in our nation, consolidation is in mind, whereby bigger always equals better. Of course, we know it does not.

My final point was touched on by the noble Lord, Lord Williamson of Horton, and relates to protest law. Some of us were involved in the Bill that became the Serious Organised Crime and Police Act 2005-SOCPA. My only contribution to it was to object to Sections 132 to 138, which I and many others thought gave far too wide powers to the police to manage protests. Many of those provisions, which would fortunately be repealed by this Bill, related to that wonderful eccentric Brian Haw, who insisted on living with his tatty placards opposite the entrance to the House. I commend much of the repeal of SOCPA, but there is one blemish which, if we had time, we should have dealt with. Clause 61 and Schedule 9 of this Bill add a new Section 14 to the Public Order Act 1986 to allow the Secretary of State, by secondary legislation, to provide the requirements subject to which the police will in future manage protests outside this place. It is wholly contrary to our tradition to allow matters of basic personal liberty to be dealt with by means of secondary legislation. This is yet another matter which is not little, but is potentially very important, because we know well enough that secondary legislation is quite useless in terms of the powers of this House. We cannot amend it and throwing it out in toto is extraordinarily rare and, even then, ineffectual.

With those points I shall come to a close, and I am sorry that I have overrun my time.



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8.13 pm

Baroness Jay of Paddington: My Lords, it is a great pleasure to welcome back the noble Lord, Lord Phillips of Sudbury, and to congratulate him on what I suppose we might describe as his second-act maiden speech. It is many years since I followed the noble Lord in a debate which included House of Lords reform. It takes me back to a time when we were young, or at least younger, and very enthusiastic about constitutional reform.

Turning to today's business, I very much welcome most of the content of the Bill, but, like many other noble Lords who have spoken from all around the House, I very much regret its timing. None the less, it is worth stating briefly what in my view should be vigorously pursued in the Bill and, if necessary, be taken into the next Parliament. Whatever the niceties of potential Committee stages in a formal sense, none of us know how much or what will survive the lottery of the wash-up.

I am very pleased that at last we have the clauses in Part 1 putting the Civil Service and Diplomatic Service on a statutory footing. I particularly welcome the proposals to make the Civil Service Commission a statutory corporate body, and the specific measures to remove existing nationality restrictions on employment and office-holders, as well as those measures which create a separate code for special advisers. I agree with my noble friend Lord Howarth of Newport, who is not in his place at the moment, that if these and some of the other important provisions in Part 1 are enacted, we should be able in future to avoid some of the political controversies about advice to Governments which have plagued Ministers and officials in recent history. I hope that when the deals are done at the end of this Parliament, Part 1 will be relatively uncontroversial.

Turning to Part 3, on balance, I support the proposed referendum on adopting the alternative vote system for the House of Commons. I would have preferred to legislate for a referendum which offers a choice between AV and other systems, but a simple question should at least produce a clear answer on AV. I am a member of your Lordships' Constitution Committee which, apart from the much-quoted assessment that it has made of this Bill, has just completed a rather sceptical report on the general value of referendums. None the less, our findings support the potential use of referendums on constitutional matters, and changing the voting system for Westminster would certainly qualify. However, it is highly unlikely, given the opposition of the Conservative Party, that Part 3 will make it, because of the 11th-hour appearance of the Bill. However, I hope that your Lordships will return to the different voting systems and referendums at another stage.

I have to say that my greatest disappointment is with Parts 5 and 6, dealing with the House of Lords. Let me say immediately that I have no argument with the proposed reforms-although I sympathise with the amendment of the noble Lord, Lord Steel, on a statutory appointments commission-but my disappointment, indeed my sadness, is that the Bill has come so late and that the Government have not taken all the earlier opportunities that there have been to get these changes onto the statute book. It is no good for

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the Government to say now that the Bill has broken the decade-long stalemate on Lords reform. This stalemate could have been broken one year ago or two years ago if the Government had, as several speakers have emphasised, either picked up the Private Member's Bills introduced by the noble Lords, Lord Steel and Lord Oakeshott, or, as the noble Baroness, Lady Boothroyd, trenchantly pointed out, moved more rapidly on their own legislation. I would even agree with the noble Lord, Lord McNally, that we could have made progress on these or similar measures nearly 10 years ago if we had followed the Royal Commission report of the noble Lord, Lord Wakeham.

We are now in a position where these very sensible measures in Parts 5 and 6, which almost exactly reflect those in the second Bill of the noble Lord, Lord Steel, and those in the 2009 Bill of the noble Lord, Lord Oakeshott, on taxation, will now almost certainly be part of what we can all understand is frantic horse trading in the wash-up. It is worth reminding your Lordships-the noble Lord, Lord Steel, has done so already-that this time last year his Bill was properly considered in a Committee of the whole House. Although there were no votes in Committee, significantly his Bill was supported at Second Reading all around the House. I noted from the record that by the end of that debate, there had been 27 speakers in favour of that Bill and five against, but on that occasion the Bill did not find favour with the Government.

My noble friends on the Front Bench, notably my noble friend Lord Hunt of Kings Heath, who has passed this chalice to my noble friend Lord Bach, have always previously argued that accepting the limited and possibly interim measures suggested by the noble Lord, Lord Steel, would threaten more substantial and long-term change. My noble friend Lord Hunt of Kings Heath on 27 February 2009 said that the measures would be inconsistent with the Government's intention to legislate for long-term reform. But today, just a year later, we have the Government themselves introducing these types of provisions and, at the same time, my right honourable friend Jack Straw is shortly to produce clauses to create an elected second Chamber. I have to agree with my noble friend Lord Gordon of Strathblane that, without being entirely cynical, it is hard to understand the legislative or political logic behind this.

On the proceedings today in your Lordships' House I, perhaps surprisingly, agree with the noble Earl, Lord Onslow, on the important question that us Back-Benchers should ask the Front-Bench spokesman when the noble Baroness, Lady Hanham, winds up for the Opposition. What exactly will they support out of Parts 5 and 6 during wash-up? In spite of the opaqueness of that procedure, I understand it will largely depend on Opposition co-operation whether particular clauses go through. Considering the substance of Parts 5 and 6, I imagine the clauses which relate to our disciplinary regime in this House will be generally agreed. I am glad to hear from the noble Lord, Lord Henley, that the same will be true of the tax and residency measures in Part 6. We have already heard that the plan to abolish by-elections for hereditary Peers is opposed by the Conservative Party and presumably will not survive. To repeat what the noble Lord, Lord Steel, said, in the

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new Parliament we will continue to have what he described as the bizarre arrangement whereby the elections in Old Sarum seem positively democratic.

Like my noble friends Lord Howarth of Newport, Lord Lea of Crondall and many others, I am in favour of the amendment of the noble Lord, Lord Steel, on the appointments commission, for reasons I do not need to repeat which he eloquently advanced, as did my noble kinsman Lord Jay of Ewelme. I was particularly impressed by the recitation by the noble Lord, Lord Steel, of the nine previous occasions on which the proposal for a statutory appointments commission had been put. I re-emphasise to my noble friend the Minister that this was a commitment in the last two Labour Party manifestos. If the Government are now prepared to take forward some measures which they had previously criticised as piecemeal, I cannot understand why we cannot extend that inconsistency to the important question of the appointments commission.

In conclusion, as I said earlier, my overall feelings about this Bill are sadness that so many opportunities to make these kinds of important changes have been missed and concern that, because of the timing, some of those proposed today will not now happen. After the general election, I expect to be sitting exactly where I am today. My gloom this afternoon and evening may well be lifted when I see a radical reform Bill in the Queen's Speech. Given some of the abandoned manifesto promises of the last years, and Mr Cameron's stated preference for delay on House of Lords reform, those of us who genuinely want to continue change in your Lordships' House will probably need to go on in the new Parliament pressing for the kinds of incremental measures which I welcome today. I hope the momentum that my noble friend the Minister referred to in opening the debate will, in the next decade, be much greater than in the last.

Lord Denham: My Lords, would the noble Baroness really be prepared to see the agreement broken between the Government and the Opposition on hereditary Peers?

Baroness Jay of Paddington: I am sorry, I do not follow the noble Lord.

Lord Denham: The noble Baroness said that she would like to see the elections for hereditary Peers end. She was in on all the agreements and ways the promises were made. Would she really sleep happy in her bed tonight if she let those promises be broken?

Baroness Jay of Paddington: My Lords, the noble Lord invites me to enter yet again the argument about what constitutes phase two of House of Lords reform. The package of proposals that the Government have now brought forward would constitute such a stage.

8.23 pm

Lord Wilson of Dinton: My Lords, before the noble Lord, Lord Steel, leaves the Chamber, I should say that I sympathise with what he said about a statutory appointments commission. I was a little involved in

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the setting up of the Appointments Commission and clearly remember the commitments given. They were an integral part of what happened and of the policy at that time. His cause is just.


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