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Government: Civil Service and Judiciary

11.37 am

Lord Howe of Aberavon rose to call attention to the conduct of the machinery of government and to the role of an independent Civil Service and judiciary; and to move for Papers.

The noble and learned Lord said: My Lords, I confess that I cannot resist the temptation to begin by quoting an article that appeared last Friday in the Financial Times by one of its most distinguished correspondents, Martin Wolf. He stated:

It has respect for institutions which,

He said that good government is ready to modify institutions where necessary, and he rightly cites the granting of independence to the Bank of England as "a superb example" of that. Alas, that was an exception and certainly not the prevailing rule. On the contrary, Martin Wolf said:

Recycling that all-too-accurate indictment gives me not one ounce of pleasure. On the contrary, it makes me all the more anxious that we learn the lessons that might prevent such behaviour happening in the future: lessons that need to learnt by those who will have the responsibility of leading this country - my right honourable friend David Cameron and certainly the Prime Minister-designate who will soon loom over us.

These lessons are constantly being illustrated in your Lordships' House, where we witness our hapless ministerial colleagues struggling day after day to defend the indefensible. There are endless examples of failure

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or mismanagement and of over-complex, ill-thought-out, often high-tech, schemes. For example, on tax credits, 10 years after their introduction by the Chancellor, a PAC report said only a few weeks ago that,

That black mark on the Chancellor's own territory almost cancels out the brownie point that I gave him a moment ago.

The noble Baroness, Lady Scotland, this week had to acknowledge that the costs of ID cards had risen by some £800 million in the past six months. The noble Baroness, Lady Andrews, had to acknowledge that home information packs were going back not just to the drawing board, but into the bin - where they should be. On the Rural Payments Agency, the noble Lord, Lord Rooker, is hauled over the coals almost once or twice a week - and so on. Other examples are the National Health Service computer programme and Modernisation of Medical Careers, which has ended up with 34,000 doctors left in the wilderness.

In every other field, similar signals of uninterrupted upheaval are constantly given. More and more people are echoing my six-word manifesto: "For God's sake, leave us alone!". The volume of legislation - primary and statutory instruments - which in the early 1980s was running at less than 8,000 pages a year and was much too much, in the early years of this decade has been running at 12,000 pages a year, which is much, much, much too much. We owe a debt of gratitude to the absentee noble Lord, Lord Phillips of Sudbury, for the information that he vouchsafed on 23 May 2005, when he told the House that,

To what benefit and what purpose?

It is not just the sheer volume of legislation that is important but the content and quality as well. It is insufficiently considered in advance by independent civil servants and still less, no doubt, by Ministers in Cabinet or elsewhere. Indeed, all too often, the policy, as well as the advice and drafting, has been contracted out. That became clear this week when, for example, the noble Lord, Lord Davies, defended, not for the first time, the performance of the Casino Advisory Panel - a sub-contractor of sub-contracting - which is now dominating the decisions.

More remarkable perhaps are the matters that should have remained within the control of Parliament. Electoral law and procedure - previously handled by Speaker's Conferences, the last of which took place in 1978 - have been contracted out to the Electoral Commission and the reduced performance of our electoral system has been condemned as being close to that of a banana republic. The chairman of that commission, Mr Sam Younger, had a distinguished record, having run the BBC World Service. The tragedy is that he was not in that immediately qualified to take on the task which he now has the burden of bearing.

All this is only one manifestation of the way in which the formation and implementation of policy and the formulation and enforcement of law have all

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too often been taken away from professional, independent civil servants, and even from scrutiny and discussion by elected politicians and Ministers. If they have not been taken away, they seem not to give them as much attention as they should.

One other example of curtailing the role of the Civil Service in this way is the frequent devolution of the analysis and preparation of policy to "courtiers", as Martin Wolf describes them, or "celebrity reviews", as they were described by the noble Lord, Lord Turnbull, in his Financial Times interview on 20 March. One courtier among our number - I do not think that he is here today; I met him only yesterday so I might be doing him an injustice - is the noble Lord, Lord Carter of Coles. He has been on and off our radar screens for a number of years in a strange diversity of roles. He has in fact prepared no fewer than 11 substantial reports that I have discovered in the past six years for six departments. Mikhail Gorbachev would describe him as truly Stakhanovite in his endeavours. The topics range from legal aid on the one hand to pathology services on the other and from the national sport effort to public diplomacy, not to mention our friend the offender management, prisons and criminal records field, which is dominating us at present.

I have learnt that the noble Lord, Lord Carter, started life as a close school friend of Gordon Brown's campaign manager, Jack Straw. I make no complaint about that; there is no reason why the network of Brentwood School should not flourish as much as that of Eton, not to mention my own. There is no harm in that and I make no suggestion of impropriety but I do suggest a degree of unwisdom on the part of Ministers, who are constantly entrusting people of this kind, who, however great their ability, have less day-to-day experience than independent, professional civil servants and less ability, expertise and general qualifications to do tasks that they should not really be doing.

The noble Lord, Lord Carter, is by no means alone. When the noble Lord, Lord Turnbull, spoke about celebrity reviews, he identified a number of other names that will occur to colleagues. But he rightly described the tendency of the Chancellor of the Exchequer - as he still is - frequently to make use of such celebrity reviews, describing them as "an unworthy development", in the sense that it "belittles other Ministers" and illustrates again,

with which they are viewed by the Treasury. Both he and Martin Wolf - and myself, among many others - fear that this manifestly centralising tendency displayed by Her Majesty's Treasury over the past10 years certainly does not bode well for the resurrection of Cabinet government when the new tenant moves into No. 10 Downing Street next month.

Nothing more clearly indicates the need for Cabinet government than the 2004 report of the privy counsellors under the chairmanship of the noble Lord, Lord Butler, on the Iraq war intelligence. It clearly highlighted the resources of wisdom, expertise and experience available in the independent Civil Service, not least in the Foreign and Commonwealth Office - and not to

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mention Cabinet Ministers themselves - which was almost systemically neglected throughout that period. The privy counsellors, in paragraphs 606-11 of their report, express,

so-called "sofa government". They draw attention to the fact that,

and express the view that that process,

in the field of foreign affairs.

I am tempted at this stage to launch into a long passage about the particular folly - particularly in today's world - of neglecting the potential value and proper role of a confident, well led and properly resourced Foreign Office. However, it is only two years since I initiated a debate on that subject, so I must leave it to others who are bursting with enthusiasm to speak about it. I hope that they will speak loudly enough for the message to be heard loud and clear by the incoming tenant of No. 10.

Finally, the judiciary's true, confident and perceived independence is, as newspaper headlines of the past two days make clear, probably of greater importance than almost anything else I have so far mentioned. We have seen it threatened by the attempted abolition, and undoubtedly serious resultant erosion, of the office and standing of their historic constitutional champion, the Lord Chancellor. Now, further dilution of that championship, as a result of the merger of what was once the Lord Chancellor's department with prisons and other divisions of the Home Office, threatens that independence in at least three ways. First, within that framework, judges will come under ever greater pressure to tailor their sentences to the availability of prison places. Secondly, there is a real risk that the Lord Chancellor, their purported champion, will himself be repeatedly subject to judicial review by the judges themselves. Finally, and most importantly, the integrity of the court's budget will be under even greater threat than it is today, competing, as it has long had to do, with the hard-pressed Legal Aid Fund and now also competing directly with the prisons and probation budget.

Nowhere will the effect be more seriously perceived than with the new Supreme Court - still the Judicial Committee of this House, with its financing currently insulated and guaranteed by Parliament itself. That was something I learnt as Chancellor of the Exchequer. I endeavoured to impose cash limits upon the expenditure of one or other House, or both. In that I was contradicted by the noble Lord, Lord Barnett, as he now is, on the other side of the fence, saying "Hands off!". I found it useful to deploy the same argument when I subsequently became Leader of the House of Commons. Once they are finally ensconced on the other side of Parliament Square, all that protection will end, and independent financing will be at risk. I believe that the Supreme Court will be much less secure in the hands of the Executive than ever it has been in the hands of this House.



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All this is a consequence of the casual, ill considered, thought-free way in which the outgoing Prime Minister has dealt with these questions. I do not say "has addressed" because I do not believe that he ever addressed them with the consideration they deserved. I believe that they have never received consideration on the scale appropriate for today. The noble and learned Lord, Lord Falconer, who is, as ever, beaming in his friendly fashion, has been obliged to struggle almost single handed through the mess while the Prime Minister and his fellow conspirator, the right honourable John Reid, are about to quit the scene. They will be leaving behind them the near destruction of the office of Lord Chancellor, which was once the lynchpin of our constitution, and the de facto subjection of the once supreme court of Commonwealth and Empire, which commanded a worldwide reputation, to having its finances controlled by the Executive of the British Government. Until three years ago, this Government were vigorously defending that office and supreme court against critics in the Strasbourg Parliament of the Council of Europe.

On 28 April 2003, that Council's legal affairs and human rights committee expressed the view that our then existing arrangements owed their existence to:

so far, so good -

Where Napoleon failed, the outgoing Prime Minister, Mr Blair, may yet succeed, even if post mortem. That is some legacy.

11.52 am

Lord Lipsey: My Lords, I congratulate the noble and learned Lord, Lord Howe of Aberavon, not only on his fascinating speech but also on the timing of this debate: just as a new Prime Minister is to take office. If we are to believe what we read, Gordon Brown is going to get rid of us lot, but we must continue to give him our best advice until the water closes over our mouths. This debate is a chance to do so.

I went into government 33 years ago as a political adviser at the Department of the Environment. I then served at the Foreign Office and at No. 10 with the noble Lord, Lord McNally. Later, I wrote a book on the Treasury, so I suppose I have been there and got the T-shirt. Perhaps exposure to the Civil Service has rubbed off on me a bit too much because I want to advocate something of a middle way between the old style in which Whitehall worked and the q/4berBlairites who think that they should have reform for breakfast, lunch and tea without regard to traditions or arguments. Having said that, I should say that the failures that I shall identify today applied as much under the Governments in which the noble and learned Lord, Lord Howe of Aberavon, served with such distinction as they do under the current Government.



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It was not a golden age when I joined. The Civil Service was conservative, cautious to a fault, entrenched in departmental silos, detached from delivery, quite unconcerned with explaining to the public what it was doing, had an intellectual conviction - that could be called arrogance - that it alone knew what policies were best and treated Ministers as conduits. Reform under Thatcher, Major and Blair has changed all that, and quite right too. However, I am not a supporter of permanent revolution. First, I do not agree with the modern fashion for saying that delivery is all and that the job of civil servants is to put in place as swiftly as possible the policies of their elected masters.

When I joined, civil servants practised hard analysis. They shared a common ethos of the common national good and often said "No, Minister" because they believed that something was wrong. Now it seems to me that Ministers expect to get out of bed in the morning, seize on some notion dreamt up by political advisers, think tanks or newspaper leader writers, immediately adopt it as policy and expect the Civil Service to fall woodenly into line; and, too often, it does. The present generation of civil servants grew up in the Thatcher years, when the question "Is he one of us?" resounded around Whitehall, and giving your opinion fully and frankly could be a barrier to advancement. The concept of the independent civil servant has, alas, been thereby diluted.

Without wishing to shock the House, I do not believe that ministerial wishes - perhaps I should call them whims - are the fount of all wisdom. Indeed, I sometimes think that the poor creatures today are more to be pitied than worshipped - birds of passage, battered by a brutal press, denigrated by a demanding public and bullied by a strong Downing Street. Some counterweight to these problems is needed. That requires a Civil Service that dares to question, to probe and to demand that the detail is got right.

Secondly, I am a bit concerned about the present role of special advisers. In contrast to the position when I was one, pretty well no one now questions that we need such creatures; indeed, they are necessary to protect the integrity of the Civil Service by doing tasks which it would be improper for it to do.

Most special advisers under successive Governments have been of high ability. However, there are dangers. It worries me that, increasingly, special advisers act as intermediaries between Ministers and parliamentarians. The sacred rule in my day was that, if an MP wanted to see a Minister, he saw a Minister. Sometimes he now sees a special adviser; that cannot be right. More than some of them are more powerful over policy than their knowledge and experience should make them. Civil servants increasingly see the way to the heart of a Minister as persuading a special adviser. That is not the right route, although of course you want to get the special adviser on board. That would not have happened in the days when the Civil Service had full confidence in itself.

Thirdly, the new emphasis on communicating policy to the public, which is universally called "spin" these days, is wholly welcome and needed, but it has had an unwelcome consequence. In my days - sorry to go on about the good old days, but what are we in the House

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for? - what I hope we did was first to decide what the right policy was and then to decide how you could communicate and sell it to the public. I sometimes think - I hope that I am wrong - that today Ministers first decide what they wish to communicate to the public and then decide what policy might best facilitate it.

Fourthly, and specifically on the Treasury, I do not share the perception that the Treasury is far too powerful. It is true that we have had a very powerful political Chancellor, soon to be a powerful Prime Minister, and that his tentacles have stretched into Whitehall. I am concerned about how much traditional, and I think sound, Treasury doctrine has been given up; sensible rules, such as the ban on hypothecation, are now waived when it suits Ministers. I am also concerned about the health of the machinery for control of public spending. When I see the Croesian sums being lavished on the health service and realise how much of that money has ended up in doctors' pockets, I cannot help but wonder if the old Treasury, for all its fusty ways, would have allowed such an outcome.

It may seem Panglossian, but is it not possible to combine the best of the old and the new - the new emphasis on openness, delivery, flexible structures and cross-departmental operation, with the old virtues of integrity of advice, clear procedures, proper minutes, proper papers and collective responsibility based on proper structured policy making? I hope so; and I hope Mr Brown will make it so.

11.59 am

Lord Thomas of Gresford: My Lords, I am grateful to the noble and learned Lord, Lord Howe of Aberavon, for introducing this debate. He has spoken of the curtailment of the independent Civil Service and the rise of the celebrity review. To some considerable degree, he has been supported by the noble Lord, Lord Lipsey, who bemoans the loss of hard analysis and proper structured policy making. I agree with all those things.

However, I shall focus on the independence of the judiciary. I have had the experience of submitting to the Chief Justice of a foreign jurisdiction that he should recuse himself on the grounds of bias. The Government of that territory enabled their practice to bring legal proceedings against political opponents and were without exception successful. When criticised by the Privy Council, that jurisdiction abolished appeals to the Privy Council. Today, in two other Commonwealth and common law countries, the judiciary is under pressure. One is Pakistan, as we heard at Question Time. The Chief Justice of Trinidad is also under pressure, facing impeachment charges. What have the Chief Justices done? They have delivered judgments unfavourable to the ruling Government.

The independence of the judiciary is woven into the fabric of our free and democratic society. We believe in the rule of law. At one time, you would never have thought that the Government of this country would have sought to attack a judge's decision that they were in the process of appealing. Yet Mr Blunkett, when Home Secretary in 2003, following an adverse judgment by Mr Justice Collins, said that,



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He said that Mr Justice Collins was responsible for undermining Parliament. Mr Blunkett lost his appeal.

Mr John Reid could also not contain himself last year in the Craig Sweeney case, when he criticised a sentence of 11 years' imprisonment imposed in Cardiff, notwithstanding that that sentence was in accordance with the Government's own formula. He said that it was "unduly lenient" and that he was personally referring the case to the Attorney-General to appeal. Vera Baird, his junior Minister, said that the judge had got the statutory formula wrong. In one of his finest moments of many fine moments, the Lord Chancellor, the noble and learned Lord, Lord Falconer, weighed in and pointed out that not only had the judge properly applied the statutory formula but that he would not permit judges to be made the whipping boys over flaws in the sentencing process. The Attorney-General also refused to lodge an appeal. Ms Baird apologised and the judge in question has since rightly been promoted to the High Court Bench. There is an example of the Lord Chancellor acting in his traditional capacity.

It is not only politicians who threaten the independence of the judiciary; the media do not hesitate to put improper pressure on judges as well. In September 2004, the Sun carried out a campaign against the noble and learned Lord, Lord Woolf, then the Lord Chief Justice. It asked readers to sign a petition requiring him to be sacked and sent removal men, as it called them, to the Royal Courts of Justice and even to his private home.

Times have changed. It is in this context that we must judge the splitting-up of the Home Office, handing over responsibility for prisons and offender management to the Secretary of State for Justice, currently the noble and learned Lord the Lord Chancellor. The present Lord Chief Justice, the noble and learned Lord, Lord Phillips of Worth Matravers, in his appearance on Tuesday before the Constitutional Affairs Committee, expressed the judges' fear that the new ministry will be swamped by demands for resources from prisons and probation, its new responsibility. Judges want the courts to be given special protection as an arm's-length executive agency with a ring-fenced budget to protect their independence. The noble and learned Lord, Lord Howe, spoke of the need to preserve the integrity of the courts budget.

It also emerged from the noble and learned Lord, Lord Phillips, that the noble and learned Lord the Lord Chancellor had learnt of the Home Office changes by reading about them in the Sunday Telegraph. I recall that I was negotiating with him the day before he was appointed to the Department for Constitutional Affairs. I swear that he did not know that that was going to happen either. That is not satisfactory.

The noble Baroness, Lady Scotland, commented last Monday on the Lord Chancellor's oath, as read out by the noble Baroness, Lady Anelay, during our debate. The noble Baroness, Lady Scotland, said:

the noble Baroness, Lady Anelay -



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the noble and learned Lord the Lord Chancellor -

The noble Baroness, Lady Scotland, also told us:

of Minister of Justice and Lord Chancellor -

This, I thought, was contrary to everything that I had understood from the Ministry of Justice document Justice - A New Approach and to the implications of the statement made by the noble and learned Lord the Lord Chancellor to the House 12 days earlier, on9 May.

Here, perhaps, is the solution to the problem expressed by the noble and learned Lord the Lord Chief Justice. Perhaps the noble Baroness, Lady Scotland, has acquired new expertise in translating the smoke signals coming out of No. 11 Downing Street. Give us back a Lord Chancellor, stripped of the additional tasks that have been imposed on the Ministry of Justice, a Lord Chancellor with sole responsibility for the core functions of his or her office. Give us back a judiciary with independence of executive interference, with, as the oath says,

That would end what the noble and learned Lord, Lord Howe, described as the destruction of the office of Lord Chancellor. We would all be happy. And if he or she needs more work in the absence of the previous chores of the Woolsack or the Judicial Committee, which we have abolished, let the Lord Chancellor's oath be extended to give to him or her the duty to defend the independence of the Civil Service as well, under a long promised and much awaited Civil Service Act.

12.06 pm

Lord Wright of Richmond: My Lords, I, too, am grateful to the noble and learned Lord, Lord Howe of Aberavon, for initiating this important and timely debate on the independence of the Civil Service and the judiciary. I hope that noble Lords will understand if I choose to concentrate on a separate branch of the public service, Her Majesty's Diplomatic Service, of which I had the honour to be Permanent Under-Secretary for five years, several of which I spent serving the noble and learned Lord himself when he was Foreign and Commonwealth Secretary. This no doubt accounts for his assumption that I am bursting with enthusiasm to speak in his debate today.

At this important moment, when we face a change in No. 10 Downing Street, I sincerely, if not enthusiastically, urge the Government to take care to maintain and take full and proper advantage of the professionalism and experience of what I firmly believe to be the best Diplomatic Service in the world. Indeed, I have quoted before in this House the remarkable tribute paid by a former French Foreign

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Minister, Monsieur Couve de Murville, when he described our foreign service as the second best in the world. We all know to whom he gave first prize.

When I retired from the public service in 1991, I realised that nearly half my colleagues in both the Diplomatic Service and the home Civil Service had served only under Conservative Governments. It is hardly surprising, then, that a new Labour Administration should have harboured some totally unfounded suspicions that the public service would find it difficult to adjust to new Labour policies, attitudes and objectives; hence, I suppose, the tendency to rely, to an even greater extent than previous Administrations did, on political and special advisers, on outside think tanks, on subcontractors, on celebrity reviews, and on what has come to be known as "sofa government". At this moment of change, I hope that a new Administration will bear in mind the unique asset that they have in the Diplomatic Service and will find ways of reverting to the traditional machinery of government to make the best use of this asset in the national interest, or in what the noble Lord, Lord Lipsey, referred to as the common national good.

Other than through the passages from the report by the noble Lord, Lord Butler of Brockwell, as quoted by the noble and learned Lord, Lord Howe, I have no way of knowing the extent to which the Foreign and Commonwealth Office was listened to or ignored in the run-up to the Iraq war. But we have chilling evidence of the way in which the State Department was not only ignored but deliberately excluded from the consultation and decision process and from post-invasion planning, with disastrous consequences.

I hope that Ministers will constantly bear in mind the contribution that the Diplomatic Service can and should make, not only to our foreign policy interests but to the Government's overall objectives in defence policy and counterterrorism. Several instances have been quoted in this House in the past year of posts that the Diplomatic Service has already been forced to close in Latin America, Africa and elsewhere. I hope that the next Prime Minister will bear in mind the damage that even minor post closures - very often with insignificant, if any, financial benefit - can cause to the national interest. On this 25th anniversary of the Falklands war, it is worth recalling the essential role that otherwise insignificant posts were called on to play in ensuring that we had sufficient support in the Security Council and world opinion to defeat the often misguided attempts to frustrate our recovery of the islands.

A great deal has rightly been said in this House about the resource pressures on our armed services. I believe that it is of equal importance to maintain a professional and experienced Diplomatic Service; to preserve our outstanding record of training sufficient linguists and regional experts to fill relevant posts in the service; and, most important, to ensure that in the Comprehensive Spending Review the service has the resources it needs to fulfil what has traditionally been the objective of successive Governments - namely, a truly effective global foreign policy. The Government have a unique asset at their disposal. I urge them to give it the resources that it needs to promote and protect our national interests around the world.



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12.12 pm

Baroness Shephard of Northwold: My Lords, I congratulate my noble and learned friend Lord Howe of Aberavon on securing this extremely timely debate and on the truly masterly way in which he introduced it.

We are a parliamentary democracy. Ours is not a perfect system, but, as Winston Churchill said, it is a good deal better than the other systems that have been tried from time to time. The system, like Parliament, has evolved and adapted to changing circumstances over many centuries, but its essence remains the same; namely, that the Government of the day owe their existence to Parliament and are accountable to Parliament. Parliament's role remains central. The 2001 Hansard Society study, The Challenge for Parliament: Making Government Accountable, says that Parliament,

It follows therefore that, in any debate about the machinery of government, one of the criteria by which that machinery should be judged is whether it provides for the Government of the day to be held to account by Parliament, which, as the Hansard Society study says,

The penalty for weakening that vital line of accountability between elector and elected is a weakening of public respect for democratic institutions and for democracy itself, which is why this debate is so important.

My noble and learned friend has outlined some of the current confusions surrounding this issue under the present Government. I would say in support of the Government - any Government - that a combination of the 24-hour-a-day media coverage, the increasing globalisation of political and business interests, the obligations imposed by membership of the EU, the cult of celebrity, the rise of pressure groups and so on makes it difficult for the machinery of government to keep pace with changing circumstances. But I would add that, with such rapid change, much of which in itself is ungovernable, there is even more need for clear and transparent parameters for procedure. If the Government are serious about democratic accountability, they should address that issue as part of every planned policy change. In the brief time available, I want to examine three aspects: the establishment of quangos, agencies and the like; devolution; and the Civil Service.

The establishment of the next steps agencies in 1988 was a change in the machinery of government. As a result of it, certain services would be delivered at arm's length from government. But as the then Prime Minister, the noble Baroness, Lady Thatcher, told the other place, there would be,



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Thus accountability was built in to that machinery change from the outset. Since 1997, literally innumerable agencies, quangos, regional bodies, task forces and review bodies have been set up by this Government, but I am not aware of the accountability of any of them being made clear. Indeed, I wonder whether the noble and learned Lord the Lord Chancellor will be able to tell us how many there now are. Their existence certainly puzzles the public, who know that they cannot turn to these bodies to hold anyone to account.

The safeguarding of clear lines of accountability is even more important where devolution is concerned because it is not possible to alter one part of the system without consequences, possibly unintended, for other parts. In the case of devolution, becausethe consequences were not clearly thought out, the electorate are unclear about the duties and responsibilities of those whom they elect to be mayor, to devolved and local government bodies, to Westminster and to Europe. Mystification and apathy follow. I do not believe that the consequences of devolution for accountability were taken sufficiently seriously when Ministers were rushing to introduce it. In 1999, John Reid said in another place that,

That is clear now. If we add to the inevitable overlap of powers and responsibilities caused by devolution the requirement that electors should also use three or four different methods when voting, we really should not be surprised that disillusion reigns. I hope that the noble and learned Lord will not take it amiss if I say that what is going on in Scotland and Wales as we speak is the result of unthought-out change in the machinery of government.

An impartial Civil Service, mentioned in the Motion, is an integral part of our assumptions about the way in which our democratic system works. The system assumes a productive tension between the political and procedural imperatives, the Civil Service being the guardian of the latter. But its role now needs to be redefined, not only because of the influential, essentially informal and above all private role played by the hugely increased number of special advisers now operating in Whitehall - there were just 38 such advisers before the 1997 general election - but also because we hear with increasing frequency from Ministers, not least in their appearances before Select Committees, that civil servants must also be held publicly accountable. If that is the view of Ministers, the need for a Civil Service Act has become pressing. The role of the Civil Service and its relationship with elected politicians require urgent redefinition in a rapidly changing world. Perhaps the noble and learned Lord the Lord Chancellor will be able to tell us today whether we can expect a Civil Service Bill in the Queen's Speech, as was promised in the Labour manifesto. If Ministers believe that accountability also rests with the unelected, they should say so and legislate for it.

The machinery of government has to change with changing circumstances. But such change must protect accountability and the role of Parliament. Those who fail to perceive that are damaging more than their own electoral chances. Therein lies the importance of today's debate.



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12.19 pm

Lord Maclennan of Rogart: My Lords, I add my voice to the felicitations offered to the noble and learned Lord, Lord Howe, on introducing the debate in a timely and percipient fashion.

I believe - perhaps slightly against the argument we have just heard from the noble Baroness, Lady Shephard - that the Government began the process of constitutional reform effectively and have laid the foundations for the further work that needs to be done. The establishment of the Humans Rights Act, the opening of the Freedom of Information Act and the decentralisation of power, despite the teething problems, are all welcome and important. What remains to be done touches upon the management of central government; I want briefly, in the limited time, to headline the areas upon which I think the Government now need to focus.

The first area is the extent to which news management has affected the priorities, presentation and content of administrative action and legislative proposals. This is not new; it is not an invention of the present Government. I remember the problems with the Dangerous Dogs Act, introduced by the Government who preceded them. The noble Lord, Lord Lipsey, is right to indicate that the public must be confident that the Government are acting according to their wishes and interests. Communication is a part of government but it should not dominate to the extent that it has in recent years. One example which springs to mind is that of the outgoing Home Secretary, Mr John Reid, responding immediately to the case of Margaret Dixon, whose surgery had been cancelled many times, by setting yet another target for hospitals, coupled with a fine for cancellation but not immediately resetting operations. The consequences for administration of such a diktat, the difficulties of monitoring and enforcing such targets and of reconciling their implementation with meeting other targets from within reduced funds, were certainly not worked out in answer to that communications crisis.

The second vital area is the independence of the Civil Service and the machinery of Cabinet government, which needs to be reinvented. In what I believe is the foundation of the modern structures of executive central government in this country, the 1918 report of Lord Haldane, it is clear that a much closer relationship between the Civil Service and the Cabinet was envisaged - and properly envisaged, because it is a partnership which enables the delivery of Ministers' wishes and the proper investigation of alternatives to be thought out in advance. So anything which diminishes that kind of independent insight is extremely dangerous to the success of the system we have.

Perhaps it had gone a little too far, or maybe it was too metaphysically understood, but certainly Sir William Beveridge, himself a Permanent Secretary, described the relationship between Minister and Permanent Secretary as being like that between man and wife, except that the Minister did not choose the Permanent Secretary and could not divorce him. There have been some attempts to divorce Permanent Secretaries in the past few years, and some have been indirectly successful. There has been - shall we say? - less than full cohabitation.



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None the less, we have heard a great deal over the past few years about a Civil Service Act, and the time has come for it to be implemented. Like other noble Lords who have spoken in the debate, particularly the noble Lord, Lord Wright, I cannot pronounce upon precisely how the Cabinet committee system is working at any time, but there are indeed shafts of light which have given some indication of its shortcomings. One of the remarkable pieces of information adduced by the noble Lord, Lord Turnbull, was his indication that Cabinet papers have increased in number from one in 1998 to nine in 2004. That, he said when he retired, was rather remarkable progress - not if you look back at the record of the Attlee Government, who produced 340 Cabinet papers in a year. Even under Mr Heath there were 140 Cabinet papers per annum.

The reason for mentioning that - and it is not entirely a matter of redefinition - is that we are seeing the most appalling White Papers being produced, into which there has been no proper input from other Cabinet Ministers. The process of refinement is clearly not working effectively. Take the paper on planning this week. I am not an expert on planning, but it ought to be comprehensible to someone of reasonable intelligence. It is about as opaque a document as I have had the misfortune to try to read and understand, and I do not think I am alone in that.

The third area where there is a need for change is clearly in the overload of central government. There is nothing that can be done about this that excludes the need and the possibility of decentralising government. I do not believe that devolution has been other than a success in Scotland and Wales, and I am clear that the differentiation of policy that is taking place in these parts of the country enables England to look at different ways of doing things and decide which are better. It is not purely for the advantage of the Scots and the Welsh.

Above all, process and thoroughness are required, but I doubt whether the papers produced over the past few years reflect that in a way that would have given pride to some earlier Administrations. I hope that these things will change under the new Prime Minister and am rather confident that we are starting in a good way with an open mind about these machinery questions.

12.27 pm

Lord Dean of Harptree: My Lords, I add my thanks to my noble friend for introducing such a timely and important debate. I shall briefly mention three subjects: secondary legislation; advisers in Whitehall, who have been referred to already by most noble Lords who have spoken; and freedom of information.

Under all Governments, the number and importance of secondary legislation - orders and regulations - have increased out of all recognition. Alas, parliamentary scrutiny has lagged behind. I am delighted that we now have the Merits of Statutory Instruments Committee in your Lordships' House, which is able to point out to us the merits and demerits of secondary legislation coming out of Whitehall and Brussels. That is a great step forward. It should improve our performance in scrutinising the vast amount of secondary legislation that comes out.



24 May 2007 : Column 781

The House retains the right to reject secondary legislation. It does so very unusually, because that is something of a blunt instrument. I would like to see the House have an opportunity to amend regulations. I am glad to see a number of noble Lords nodding their heads about that. I do not mean wrecking - that would be wholly inappropriate - but the wisdom and experience in your Lordships' House could be valuable in suggesting to the Government of the day that what they want to do could be achieved more effectively in another way. It would be valuable if the House were able to suggest constructive amendments so that the Government could think again.

My second point, on consultants and advisers in Whitehall, has been referred to by most noble Lords who have spoken. There has been a very substantial and, in my view, disturbing increase in recent years, which sits uneasily with the established Civil Service. It tends to weaken the long tradition in our country of the trust and relationship which should exist between Ministers and civil servants.

Political advisers have been mentioned. The best adviser to a Minister is the Minister himself. All Ministers are Members of either the Commons or the Lords. They should know, better than any outsider, what will be regarded by Parliament and the public as feasible, reasonable and desirable. The number of advisers, particularly political advisers, has increased, is still increasing and should be diminished.

My third point, on freedom of information, is allied to that. It is the duty of civil servants, as the noble Lord, Lord Lipsey, reminded us, to give advice to Ministers. Sometimes that advice will be unwelcome; sometimes it will be rejected - Ministers are of course perfectly entitled to reject it. The safeguard is in Parliament - Ministers are answerable to one or other House of Parliament, where there will be rigorous questioning of their activities. But advice that is given in private should remain private, otherwise the relationship between Ministers and civil servants could easily be undermined. It would be quite wrong for journalists or busybody individuals to extract that sort of advice; it would be a great mistake, and contrary to the traditions of government in this country.

I believe that the case has arrived, on this and other aspects, to review the Freedom of Information Act in the light of experience. On these three areas, some action is required, either by this Government or the next.

12.32 pm

Lord Wallace of Saltaire: My Lords, I take it from the predominance of Conservative speakers that this is seen as a debate attacking the Government. I want to address the problem of the style of government, which stretches back to 1979. If we were to have a new Government headed by Mr Cameron, we would see very much the style of government that we have seen with Tony Blair. After all, the self-image of Government, since Mrs Thatcher became Prime Minister in 1979, has been as radical reformers, battling against obstructive public service providers. There is deep suspicion of the producers and

24 May 2007 : Column 782

professionals, be they doctors, teachers or judges - or, for that matter, social workers or probation officers - and a bias towards the consumers of public services. People are treated as consumers rather than citizens, who are to be empowered by being given a wider choice.

There are three elements in this approach. The first is fast government. We have talked about permanent reform - almost permanent revolution - in which Governments produce initiatives every day as far as they can. In an excellent article on policy disasters in British Government, published in 1995 - before Labour came in - my colleague at the London School of Economics, Patrick Dunleavy refers to the British style of government as wanting to be the fastest Government in the west. In Britain and New Zealand, Ministers could produce an idea in the morning, shove it through Parliament as fast as possible, implement it in no time at all and discover two years later that it did not work. The poll tax is a classic example, but there are many others.

This is not something we have suffered under Tony Blair alone. Indeed, we see that David Cameron has a new idea every day; designed to catch the media. The fact that he has not consulted his party is not entirely important; the fact that his party dislikes it is even better in some ways. I am not sure that we would see a fundamental change in style if we had a change of Government.

Patrick Dunleavy also spoke about political hyperactivism, in 1995. Constant initiatives by Ministers are driven by the media agenda. If in doubt, Ministers reorganise. There have been three reorganisations of the National Health Service since 1997, but four between 1979 and 1997. Ministers are constantly churned. I think that John Reid takes the record overall over the past 25 years, having had nine posts in 10 years, but Ministers rarely stay in office long enough to carry out the policies they have proposed. I recall Patricia Hewitt, as Secretary of State for Trade and Industry, launching a five-year plan for the department, three months before she was moved. The five-year plan sank relatively rapidly.

The second element of this style of government is overcentralisation. It began with Mrs Thatcher and continued under Tony Blair, from the impatience by Ministers at the centre with the pace of implementation at local level. There are further and further restrictions on local government, tighter and tighter targets, more and more detailed instructions landing at the front doors of primary schools and hospitals.

The third element is the faith in fashionable techniques of management and in management consultants. Rather than responsible officials, apparently, management consultants are not considered to be self-interested although officials, doctors, teachers, judges, and so on, are of course seen as self-interested. By some estimates, some £6 billion has been spent on management consultants since 1997.

I have consulted a number of academic experts on new public management over the past year. Christopher Hood, now the Gladstone Professor of Government at Oxford, talks in The Art of the State about the fashion of Reinventing Government - the classic book

24 May 2007 : Column 783

by David Osborne and Ted Gabler, which inspired first the New Zealanders and then the British: He says:

Even the Parliamentary Information and Communication Technology unit is going through a programme of change management this week, I am happy to see.

I taught some years ago at the national management college, where I note that senior officials are now being trained to be change managers. Not stability managers, not executors of what Ministers want, but change managers. There is constant churning in every single way.

Radical reform is pressing even further. We hear from Tony Blair, as he departs, that he most regrets not pushing faster and further on public sector reform. The Home Office document which responded to the report of the noble Lord, Lord Carter of Coles, on offender management said:

It does not tell us why we need to go further, it just says that we need to.

Offender management, with which some of us are currently struggling, seems to many of us to be a classic example of what the public administration experts call overcommitment. You take a model and apply it to more and more sectors until it no longer works, as with the outsourcing model developed for the oil industry when applied to the maintenance of the railways.

Unjustified claims for novelty are part of this. Management experts sell us new and modern administrative innovations tried out generations ago. Pay for performance was phased out in English schools in 1902. The ID card scheme was not possible before computers, but Jeremy Bentham proposed that the problems of identity that plagued public administration could be resolved by the compulsory tattooing of all babies at birth.

We have an underlying problem with the style of government. Returning to a Conservative single-party Government would not resolve our problems. Fast government is like fast food - it leads to indigestion and imposes increasing stresses on the system. We need slow and considered government of a very different style. That requires a different relationship between Parliament and the Executive, whatever Prime Minister or party is in power.

12.40 pm

Lord King of Bridgwater: My Lords, I congratulate my noble and learned friend on the timeliness of this debate. I not sure that he knew when he proposed it that there would be such a vast amount of material to be adduced in support of the thesis that the present system of management of government leaves a lot to be desired.



24 May 2007 : Column 784

I was struck today by a newspaper article byMr Peter Riddell, who is not the most tabloid of journalists, on the new Ministry of Justice. He said that the changes had been handled in a "typically inept way" and that the new ministry had been introduced in "a similarly crass manner". That is a pretty severe verdict. When one considers the background of the Rural Payments Agency, HIPs and doctors marching in the streets in protest at the shambles that has been made of their future career prospects, one realises that there is an extraordinary amount of material to suggest that things are not well.

The noble Lord, Lord Wallace, referred to Patricia Hewitt introducing a five-year plan and being almost certain to be moved on three months later. She introduced it in the expectation that she would carry it out. We also see a quite extraordinary situation in the Home Office. The present Home Secretary has introduced a total convulsion in its operations, knowing perfectly well that he has no intention of being there to carry it out. I should have thought that it would have been polite in normal circumstances to have told the Lord Chancellor and the Lord Chief Justice of a change of quite such profound significance rather than their having to rely on the Sunday newspapers to find out. It might have been more polite also if the person who is to be charged with this responsibility had had some involvement in considering whether the changes could be effectively achieved. Not only will the Home Secretary not be around to see it through, but the other person who authorised this extraordinary rush, the Prime Minister, will not be there either. They have passed on to their successors what may prove to be a very challenging role. I suppose that it is part of the final triumph and chapter of the Prime Minister's career. We are told that it has been planned for the past two years by a team in Downing Street. It should be subtitled, "How not to govern the country". Events in recent weeks indicate that it is not a clever way for a Prime Minister to hand over responsibility for the top office in the land.

A number of noble Lords referred to special advisers - I appreciated in particular the comments of the noble Lord, Lord Lipsey. They were just beginning to appear in my day - I did not qualify for one when I first became a Minister. Gradually, one saw special advisers creeping in and the bad habits starting. Those habits have reached a peak now. Some special advisers have an admirable and professional contribution to make; others appear to do little more than provide special PR support for the Secretary of State or the Minister concerned. I read that one Secretary of State has a special adviser whose brief is to get as many favourable references to his Secretary of State as possible in the press every day. If that is being paid for out of public funds, it shows just how far the perfectly legitimate role of special advisers may have been abused.

Noble Lords have referred also to consultants. There is a perfectly good role for responsible consultants to play. Many distinguished firms are making a lot of money out of government and the public sector. I see that the National Audit Office says that £7.2 billion was spent on consultants last year, with no proof of any benefits. I do not accept that; I am sure that there

24 May 2007 : Column 785

must have been some benefit somewhere. However, it has become a culture - I have had personal experience of this. It goes back partly to the lack of professionalism in certain areas of the Civil Service. The use of consultants is undermining the Civil Service's chances of bringing higher levels of professionalism in house. One deals with a new issue or problem now by putting it out to consultants, because, that way, one does not have to take responsibility. You have ticked the box; the consultants are taking it on; and they produce their report. They may employ people who are far less qualified and experienced than the civil servants who are using those consultants, but if the report has PWC or Accenture or somebody else's name on the cover, it is assumed that they must be professionals and know what they are doing. That is the procedure.

The safeguarding of clear lines of accountability is even more important where devolution is concerned because it is not possible to alter one part of the system without consequences, possibly unintended, for other parts. In the case of devolution, becausethe consequences were not clearly thought out, the electorate are unclear about the duties and responsibilities of those whom they elect to be mayor, to devolved and local government bodies, to Westminster and to Europe. Mystification and apathy follow. I do not believe that the consequences of devolution for accountability were taken sufficiently seriously when Ministers were rushing to introduce it. In 1999, John Reid said in another place that,

That is clear now. If we add to the inevitable overlap of powers and responsibilities caused by devolution the requirement that electors should also use three or four different methods when voting, we really should not be surprised that disillusion reigns. I hope that the noble and learned Lord will not take it amiss if I say that what is going on in Scotland and Wales as we speak is the result of unthought-out change in the machinery of government.

An impartial Civil Service, mentioned in the Motion, is an integral part of our assumptions about the way in which our democratic system works. The system assumes a productive tension between the political and procedural imperatives, the Civil Service being the guardian of the latter. But its role now needs to be redefined, not only because of the influential, essentially informal and above all private role played by the hugely increased number of special advisers now operating in Whitehall - there were just 38 such advisers before the 1997 general election - but also because we hear with increasing frequency from Ministers, not least in their appearances before Select Committees, that civil servants must also be held publicly accountable. If that is the view of Ministers, the need for a Civil Service Act has become pressing. The role of the Civil Service and its relationship with elected politicians require urgent redefinition in a rapidly changing world. Perhaps the noble and learned Lord the Lord Chancellor will be able to tell us today whether we can expect a Civil Service Bill in the Queen's Speech, as was promised in the Labour manifesto. If Ministers believe that accountability also rests with the unelected, they should say so and legislate for it.

The machinery of government has to change with changing circumstances. But such change must protect accountability and the role of Parliament. Those who fail to perceive that are damaging more than their own electoral chances. Therein lies the importance of today's debate.



24 May 2007 : Column 779

12.19 pm

Lord Maclennan of Rogart: My Lords, I add my voice to the felicitations offered to the noble and learned Lord, Lord Howe, on introducing the debate in a timely and percipient fashion.

I believe - perhaps slightly against the argument we have just heard from the noble Baroness, Lady Shephard - that the Government began the process of constitutional reform effectively and have laid the foundations for the further work that needs to be done. The establishment of the Humans Rights Act, the opening of the Freedom of Information Act and the decentralisation of power, despite the teething problems, are all welcome and important. What remains to be done touches upon the management of central government; I want briefly, in the limited time, to headline the areas upon which I think the Government now need to focus.

The first area is the extent to which news management has affected the priorities, presentation and content of administrative action and legislative proposals. This is not new; it is not an invention of the present Government. I remember the problems with the Dangerous Dogs Act, introduced by the Government who preceded them. The noble Lord, Lord Lipsey, is right to indicate that the public must be confident that the Government are acting according to their wishes and interests. Communication is a part of government but it should not dominate to the extent that it has in recent years. One example which springs to mind is that of the outgoing Home Secretary, Mr John Reid, responding immediately to the case of Margaret Dixon, whose surgery had been cancelled many times, by setting yet another target for hospitals, coupled with a fine for cancellation but not immediately resetting operations. The consequences for administration of such a diktat, the difficulties of monitoring and enforcing such targets and of reconciling their implementation with meeting other targets from within reduced funds, were certainly not worked out in answer to that communications crisis.

The second vital area is the independence of the Civil Service and the machinery of Cabinet government, which needs to be reinvented. In what I believe is the foundation of the modern structures of executive central government in this country, the 1918 report of Lord Haldane, it is clear that a much closer relationship between the Civil Service and the Cabinet was envisaged - and properly envisaged, because it is a partnership which enables the delivery of Ministers' wishes and the proper investigation of alternatives to be thought out in advance. So anything which diminishes that kind of independent insight is extremely dangerous to the success of the system we have.

Perhaps it had gone a little too far, or maybe it was too metaphysically understood, but certainly Sir William Beveridge, himself a Permanent Secretary, described the relationship between Minister and Permanent Secretary as being like that between man and wife, except that the Minister did not choose the Permanent Secretary and could not divorce him. There have been some attempts to divorce Permanent Secretaries in the past few years, and some have been indirectly successful. There has been - shall we say? - less than full cohabitation.



24 May 2007 : Column 780

None the less, we have heard a great deal over the past few years about a Civil Service Act, and the time has come for it to be implemented. Like other noble Lords who have spoken in the debate, particularly the noble Lord, Lord Wright, I cannot pronounce upon precisely how the Cabinet committee system is working at any time, but there are indeed shafts of light which have given some indication of its shortcomings. One of the remarkable pieces of information adduced by the noble Lord, Lord Turnbull, was his indication that Cabinet papers have increased in number from one in 1998 to nine in 2004. That, he said when he retired, was rather remarkable progress - not if you look back at the record of the Attlee Government, who produced 340 Cabinet papers in a year. Even under Mr Heath there were 140 Cabinet papers per annum.

The reason for mentioning that - and it is not entirely a matter of redefinition - is that we are seeing the most appalling White Papers being produced, into which there has been no proper input from other Cabinet Ministers. The process of refinement is clearly not working effectively. Take the paper on planning this week. I am not an expert on planning, but it ought to be comprehensible to someone of reasonable intelligence. It is about as opaque a document as I have had the misfortune to try to read and understand, and I do not think I am alone in that.

The third area where there is a need for change is clearly in the overload of central government. There is nothing that can be done about this that excludes the need and the possibility of decentralising government. I do not believe that devolution has been other than a success in Scotland and Wales, and I am clear that the differentiation of policy that is taking place in these parts of the country enables England to look at different ways of doing things and decide which are better. It is not purely for the advantage of the Scots and the Welsh.

Above all, process and thoroughness are required, but I doubt whether the papers produced over the past few years reflect that in a way that would have given pride to some earlier Administrations. I hope that these things will change under the new Prime Minister and am rather confident that we are starting in a good way with an open mind about these machinery questions.

12.27 pm

Lord Dean of Harptree: My Lords, I add my thanks to my noble friend for introducing such a timely and important debate. I shall briefly mention three subjects: secondary legislation; advisers in Whitehall, who have been referred to already by most noble Lords who have spoken; and freedom of information.

Under all Governments, the number and importance of secondary legislation - orders and regulations - have increased out of all recognition. Alas, parliamentary scrutiny has lagged behind. I am delighted that we now have the Merits of Statutory Instruments Committee in your Lordships' House, which is able to point out to us the merits and demerits of secondary legislation coming out of Whitehall and Brussels. That is a great step forward. It should improve our performance in scrutinising the vast amount of secondary legislation that comes out.



24 May 2007 : Column 781

The House retains the right to reject secondary legislation. It does so very unusually, because that is something of a blunt instrument. I would like to see the House have an opportunity to amend regulations. I am glad to see a number of noble Lords nodding their heads about that. I do not mean wrecking - that would be wholly inappropriate - but the wisdom and experience in your Lordships' House could be valuable in suggesting to the Government of the day that what they want to do could be achieved more effectively in another way. It would be valuable if the House were able to suggest constructive amendments so that the Government could think again.

My second point, on consultants and advisers in Whitehall, has been referred to by most noble Lords who have spoken. There has been a very substantial and, in my view, disturbing increase in recent years, which sits uneasily with the established Civil Service. It tends to weaken the long tradition in our country of the trust and relationship which should exist between Ministers and civil servants.

Political advisers have been mentioned. The best adviser to a Minister is the Minister himself. All Ministers are Members of either the Commons or the Lords. They should know, better than any outsider, what will be regarded by Parliament and the public as feasible, reasonable and desirable. The number of advisers, particularly political advisers, has increased, is still increasing and should be diminished.

My third point, on freedom of information, is allied to that. It is the duty of civil servants, as the noble Lord, Lord Lipsey, reminded us, to give advice to Ministers. Sometimes that advice will be unwelcome; sometimes it will be rejected - Ministers are of course perfectly entitled to reject it. The safeguard is in Parliament - Ministers are answerable to one or other House of Parliament, where there will be rigorous questioning of their activities. But advice that is given in private should remain private, otherwise the relationship between Ministers and civil servants could easily be undermined. It would be quite wrong for journalists or busybody individuals to extract that sort of advice; it would be a great mistake, and contrary to the traditions of government in this country.

I believe that the case has arrived, on this and other aspects, to review the Freedom of Information Act in the light of experience. On these three areas, some action is required, either by this Government or the next.

12.32 pm

Lord Wallace of Saltaire: My Lords, I take it from the predominance of Conservative speakers that this is seen as a debate attacking the Government. I want to address the problem of the style of government, which stretches back to 1979. If we were to have a new Government headed by Mr Cameron, we would see very much the style of government that we have seen with Tony Blair. After all, the self-image of Government, since Mrs Thatcher became Prime Minister in 1979, has been as radical reformers, battling against obstructive public service providers. There is deep suspicion of the producers and

24 May 2007 : Column 782

professionals, be they doctors, teachers or judges - or, for that matter, social workers or probation officers - and a bias towards the consumers of public services. People are treated as consumers rather than citizens, who are to be empowered by being given a wider choice.

There are three elements in this approach. The first is fast government. We have talked about permanent reform - almost permanent revolution - in which Governments produce initiatives every day as far as they can. In an excellent article on policy disasters in British Government, published in 1995 - before Labour came in - my colleague at the London School of Economics, Patrick Dunleavy refers to the British style of government as wanting to be the fastest Government in the west. In Britain and New Zealand, Ministers could produce an idea in the morning, shove it through Parliament as fast as possible, implement it in no time at all and discover two years later that it did not work. The poll tax is a classic example, but there are many others.

This is not something we have suffered under Tony Blair alone. Indeed, we see that David Cameron has a new idea every day; designed to catch the media. The fact that he has not consulted his party is not entirely important; the fact that his party dislikes it is even better in some ways. I am not sure that we would see a fundamental change in style if we had a change of Government.

Patrick Dunleavy also spoke about political hyperactivism, in 1995. Constant initiatives by Ministers are driven by the media agenda. If in doubt, Ministers reorganise. There have been three reorganisations of the National Health Service since 1997, but four between 1979 and 1997. Ministers are constantly churned. I think that John Reid takes the record overall over the past 25 years, having had nine posts in 10 years, but Ministers rarely stay in office long enough to carry out the policies they have proposed. I recall Patricia Hewitt, as Secretary of State for Trade and Industry, launching a five-year plan for the department, three months before she was moved. The five-year plan sank relatively rapidly.

The second element of this style of government is overcentralisation. It began with Mrs Thatcher and continued under Tony Blair, from the impatience by Ministers at the centre with the pace of implementation at local level. There are further and further restrictions on local government, tighter and tighter targets, more and more detailed instructions landing at the front doors of primary schools and hospitals.

The third element is the faith in fashionable techniques of management and in management consultants. Rather than responsible officials, apparently, management consultants are not considered to be self-interested although officials, doctors, teachers, judges, and so on, are of course seen as self-interested. By some estimates, some £6 billion has been spent on management consultants since 1997.

I have consulted a number of academic experts on new public management over the past year. Christopher Hood, now the Gladstone Professor of Government at Oxford, talks in The Art of the State about the fashion of Reinventing Government - the classic book

24 May 2007 : Column 783

by David Osborne and Ted Gabler, which inspired first the New Zealanders and then the British: He says:

Even the Parliamentary Information and Communication Technology unit is going through a programme of change management this week, I am happy to see.

I taught some years ago at the national management college, where I note that senior officials are now being trained to be change managers. Not stability managers, not executors of what Ministers want, but change managers. There is constant churning in every single way.

Radical reform is pressing even further. We hear from Tony Blair, as he departs, that he most regrets not pushing faster and further on public sector reform. The Home Office document which responded to the report of the noble Lord, Lord Carter of Coles, on offender management said:

It does not tell us why we need to go further, it just says that we need to.

Offender management, with which some of us are currently struggling, seems to many of us to be a classic example of what the public administration experts call overcommitment. You take a model and apply it to more and more sectors until it no longer works, as with the outsourcing model developed for the oil industry when applied to the maintenance of the railways.

Unjustified claims for novelty are part of this. Management experts sell us new and modern administrative innovations tried out generations ago. Pay for performance was phased out in English schools in 1902. The ID card scheme was not possible before computers, but Jeremy Bentham proposed that the problems of identity that plagued public administration could be resolved by the compulsory tattooing of all babies at birth.

We have an underlying problem with the style of government. Returning to a Conservative single-party Government would not resolve our problems. Fast government is like fast food - it leads to indigestion and imposes increasing stresses on the system. We need slow and considered government of a very different style. That requires a different relationship between Parliament and the Executive, whatever Prime Minister or party is in power.

12.40 pm

Lord King of Bridgwater: My Lords, I congratulate my noble and learned friend on the timeliness of this debate. I not sure that he knew when he proposed it that there would be such a vast amount of material to be adduced in support of the thesis that the present system of management of government leaves a lot to be desired.



24 May 2007 : Column 784

I was struck today by a newspaper article byMr Peter Riddell, who is not the most tabloid of journalists, on the new Ministry of Justice. He said that the changes had been handled in a "typically inept way" and that the new ministry had been introduced in "a similarly crass manner". That is a pretty severe verdict. When one considers the background of the Rural Payments Agency, HIPs and doctors marching in the streets in protest at the shambles that has been made of their future career prospects, one realises that there is an extraordinary amount of material to suggest that things are not well.

The noble Lord, Lord Wallace, referred to Patricia Hewitt introducing a five-year plan and being almost certain to be moved on three months later. She introduced it in the expectation that she would carry it out. We also see a quite extraordinary situation in the Home Office. The present Home Secretary has introduced a total convulsion in its operations, knowing perfectly well that he has no intention of being there to carry it out. I should have thought that it would have been polite in normal circumstances to have told the Lord Chancellor and the Lord Chief Justice of a change of quite such profound significance rather than their having to rely on the Sunday newspapers to find out. It might have been more polite also if the person who is to be charged with this responsibility had had some involvement in considering whether the changes could be effectively achieved. Not only will the Home Secretary not be around to see it through, but the other person who authorised this extraordinary rush, the Prime Minister, will not be there either. They have passed on to their successors what may prove to be a very challenging role. I suppose that it is part of the final triumph and chapter of the Prime Minister's career. We are told that it has been planned for the past two years by a team in Downing Street. It should be subtitled, "How not to govern the country". Events in recent weeks indicate that it is not a clever way for a Prime Minister to hand over responsibility for the top office in the land.

A number of noble Lords referred to special advisers - I appreciated in particular the comments of the noble Lord, Lord Lipsey. They were just beginning to appear in my day - I did not qualify for one when I first became a Minister. Gradually, one saw special advisers creeping in and the bad habits starting. Those habits have reached a peak now. Some special advisers have an admirable and professional contribution to make; others appear to do little more than provide special PR support for the Secretary of State or the Minister concerned. I read that one Secretary of State has a special adviser whose brief is to get as many favourable references to his Secretary of State as possible in the press every day. If that is being paid for out of public funds, it shows just how far the perfectly legitimate role of special advisers may have been abused.

Noble Lords have referred also to consultants. There is a perfectly good role for responsible consultants to play. Many distinguished firms are making a lot of money out of government and the public sector. I see that the National Audit Office says that £7.2 billion was spent on consultants last year, with no proof of any benefits. I do not accept that; I am sure that there

24 May 2007 : Column 785

must have been some benefit somewhere. However, it has become a culture - I have had personal experience of this. It goes back partly to the lack of professionalism in certain areas of the Civil Service. The use of consultants is undermining the Civil Service's chances of bringing higher levels of professionalism in house. One deals with a new issue or problem now by putting it out to consultants, because, that way, one does not have to take responsibility. You have ticked the box; the consultants are taking it on; and they produce their report. They may employ people who are far less qualified and experienced than the civil servants who are using those consultants, but if the report has PWC or Accenture or somebody else's name on the cover, it is assumed that they must be professionals and know what they are doing. That is the procedure.

It is a serious matter in two respects: first, it costs a lot of money; secondly, it costs a lot of time. It is a wonderful way to bury something and wait for it to come round again in time. The cost to the country is doubly serious. I read that Sir Stuart Lipton, discussing this matter in connection with the Olympic Games, said that the jibe being made is that the cost of consultants for the Olympics, employed by the Treasury, DCMS, the Olympic Development Authority and LOCOG, led by our noble friend Lord Coe, will exceed the building costs. That may or not be true.

My next point relates to reshuffles. The knowledge that the Prime Minister is going leads inevitably to a semi-paralysis in government. I recognise this from the time when we were in government. When there is a rumour of a reshuffle, everybody starts to look over their shoulders and civil servants do not pay so much attention because they think that the Minister will not be there for much longer. Continual change is a problem. If noble Lords need ultimate proof of the inadequacies of the present system, I remind them of what the noble Lord, Lord Wallace, has just said. Mr John Reid has done nine different jobs in 10 years. It is a recipe for disaster. One cannot expect out of that any quality in policy-making or any quality of experience.

My final point is not necessarily a party-political attack on the Government, because, as the noble Lord, Lord Wallace, said, all governments are under pressure to make instant decisions. It is essential that properly considered policy-making through a properly structured relationship between Ministers and civil servants is restored. Sofa government has got to go. I hope that that will be understood by the incoming Prime Minister as well. I hope that he will understand that the present Prime Minister - I say this with regret - has been far too casual about the standards of conduct in public life. One does not have to listen just toSir Alistair Graham's expressions of outrage at the way in which his committee has been ignored. If Lord Nolan, whom we sadly miss, were here, I think that he would have some very similar things to say. There is no question that standards in this Government have been set far too low down the line - I do not know whether it is done by PR and communications staff in Number 10 or by whomever it is who responds to the press when these issues arise - and I hope that the new Prime Minister will see that the standing of government and Parliament is too low. He will have first responsibility to correct that.



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12.48 pm

Lord Lyell of Markyate: My Lords, if I needed a text to summarise the Prime Minister's position in relation to the policies that I wish to criticise, I would adapt, indeed distort, the famous words of Lincoln: "Conceived in ignorance and dedicated to the proposition that he must at all costs appear radical". I, too, congratulate my noble and learned friend Lord Howe of Aberavon on initiating this important debate and on his powerful and timely speech. I shall reflect briefly on the constitutional changes in relation to the position of the judiciary and the position of the Lord Chancellor as it now remains.

It is astonishing that, in the declining years of his historic term of office, the Prime Minister should have inflicted on the country two such hastily conceived and ill-thought-out policies: first, the decision in 2003 to seek to abolish the position of Lord Chancellor and to push the judiciary out of Parliament into a so-called Supreme Court; and, now, the creation of a new so-called Ministry of Justice, combining two major Home Office functions and the Lord Chancellor's responsibility for the judiciary and the Courts Service. It is quite inconsistent with our historic constitutional procedures that such major constitutional changes should have been introduced without any of the normal processes - without Green Papers, without White Papers, without consultation and without even full and careful consideration within the Civil Service beforehand.

Both policies appear to have been dreamed up by Tony Blair and his Home Secretaries with the very minimum of consultation even within government. First, there was David Blunkett in 2003 and, today, there is John Reid. Both changes come against a background of recent unlicensed criticisms of judges by both those Home Secretaries - I applaud the noble and learned Lord the Lord Chancellor for criticising that - and, given that the noble and learned Lord, Lord Irvine, the former Lord Chancellor, seems to have been sacked largely because he was rightly standing up for the judges against such unconstitutional attacks, the situation in 2003 was literally shocking. That shock is plain for all to see on the face of the noble and learned Lord, Lord Irvine, in the fine portrait of him in the Peers' Dining Room. The artist made no secret of the fact that that is what he saw, and that is what he painted; he did us a service.

The second remarkable thing about these two radical changes is their inconsistency. The argument given for the first was that the position of the Lord Chancellor in the 21st century had become an anomaly - a word that, like "modernisation" and "perception", often seeks to disguise sloppy thinking or specious argument. It was said that his role as a member of both the legislature and the Executive, and as head of and therefore a member of the judiciary, constituted a breach of the so-called doctrine of separation of powers. That was a false analysis, but the present proposal for the Ministry of Justice is undoubtedly a breach of that doctrine and, as the judges rightly point out, raises the prospect - indeed, the inevitability - of real conflicts of interest between the three roles of the new Minister.



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The new Minister has a duty properly to fund the courts so that the judges can do justice and pronounce sentence according to law with adequate funding and without constant, albeit subtle, ministerial and departmental pressures. Out of the same budget, though it may be dressed up to look different, he must also fund the prison and probation services and other training provision to enable those sentences to be carried out. In all his functions, he - and I am looking at the noble and learned Lord, Lord Falconer - is going to feel those tensions. But the one that offends against principle will be the inevitable tendency of the Lord Chancellor to lean directly or indirectly on judges to make do with less than they properly feel that they need to perform their judicial duties in the public interest.

The present Lord Chancellor is at least an experienced lawyer, but his successors are likely to be in the House of Commons and/or to have no legal background whatever. That is what you see in France with the Garde des Sceaux; it works in France for quite different reasons, because the judges are often civil servants for a substantial period of their judicial careers. I cannot believe that we wish to go down that route. As is at least paid lip service to in this House - and I hope sincerely - an independent judiciary is an absolute essential for a free society, as is an independent prosecuting service and law officers who know in their bones that it is their absolute duty to protect through their superintendence the independence from government of the prosecuting process and the independence and high efficiency of the legal advice, however unpalatable, that needs from time to time to be given to the Government.

I revert to what I believe are the fundamental misunderstandings and the consequent damage to the British constitution caused by the changes in 2003 embodied ultimately in the Constitutional Reform Act 2005. Earlier this week on the "Today" programme, Dominic Grieve, the shadow Attorney-General, was asked whether the Conservatives would change the position back if we were in government. He rightly temporised, saying that we would have to wait and see exactly what sort of mess we were in at the material time. However, the prospect and possibility of reverting back would have a sound constitutional basis and should be carefully explored over the coming years.

The problem is that the Constitutional ReformAct 2005 was founded on a fundamental misunderstanding. Our constitutional democracy is one of the most stable and successful in the world, and the foundation of its success is that every power of governance in its widest sense is accountable to Parliament. In relation to the judiciary, accountability lay not through individual opinions on cases - that would be something quite different - but through the Lord Chancellor for the good, sound and properly funded working of the system, just as the prosecution process, which must be equally independent, was accountable through the Attorney-General. Both those high officers of state were answerable and could be condemned if they got it wrong. Indeed, we remember - although there are a lot of historical

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nuances to this - the importance of the Campbell case in 1924, which brought down the first Labour Government.

We need to return to the importance of constitutional propriety and correct machinery if we are to be guided in the right direction. That is why I so strongly congratulate my noble and learned friend Lord Howe on securing this debate. Institutions are important and should be restored.

12.56 pm

Baroness Noakes: My Lords, I congratulate my noble and learned friend Lord Howe on hitting the jackpot by selecting this topic for debate. My modest qualification for speaking today is that I was twice seconded into the Civil Service, where I spent a total of five years. The first time was in 1979, in the Treasury. A couple of weeks after I arrived, the new Chancellor of the Exchequer was my noble and learned friend, which is why it gives me particular pleasure to speak in his debate today. It is to the subject of the Treasury that I shall address some of my remarks.

One thing that I learnt when I became a part of the Civil Service temporarily was the clear separation between what Ministers and the Civil Service did. The Civil Service advised Ministers in an independent and impartial way and Ministers made decisions. That clear separation was reflected in the formal way in which Ministers were addressed by their title and not their names. Now things are different. I am sure that civil servants still try to serve Ministers in an impartial and independent way, but formality has been replaced by familiarity. Even quite junior civil servants now refer to their Ministers by their first name, both in the Ministers' presence and separately. I know that we live in a world where formality reigns and deference has diminished, but I cannot but think that this informality is a sign that the clear distinction between Ministers and those who serve them has broken down.

I also learnt about special advisers, to which several other noble Lords have referred. Their role was to give Ministers advice that was political in nature, which was not the role of the civil servant. Special advisers certainly did not have any direct control over civil servants, and there were not many of them. Not only have their number increased in the past 10 years, but it is now explicitly the case that some of them can direct the work of civil servants. I believe that a very important line was breached when that occurred. We saw it in No. 10, but also in the Treasury.

The Chancellor of the Exchequer, in the face of opposition from his Permanent Secretary, appointed Mr Charlie Wheelan to run the Treasury's press operation. That unhappy experience lasted less than two years. But perhaps of more significance is the case of Mr Ed Balls. Having worked for Gordon Brown in opposition, in 1997 he was appointed as the Chancellor's economic adviser, which was a special adviser post. Two years later, he crossed over into the Civil Service and became the Chancellor's chief economic adviser; he stayed there until 1995, when he

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became a parliamentary candidate for the seat that he now holds. Did anybody believe that Mr Balls was anything other than a political adviser to the Chancellor throughout that whole period? I think not.

In addition, the Chancellor has a Council of Economic Advisers, which has been estimated to cost more than £1 million a year. Five of its members are appointed on special adviser terms. Why did the Chancellor find it necessary to gather advisers around him in this way when he was surrounded by the undoubted intellects who exist in large numbers among Treasury civil servants? Has the advice of his civil servants been replaced and, if so, why was that necessary?

It is not surprising that some of the Treasury's Permanent Secretaries and other civil servants have found working with the Chancellor's regime very difficult. If they did not adapt to the Chancellor's way of doing things, they found it difficult to survive. His way of doing things was well documented in an excellent book by Mr Tom Bower, entitled Gordon Brown. This included bypassing the Civil Service way of documenting meetings and decisions; that was also a feature in the report produced by the noble Lord, Lord Butler, which has already been referred to.

Perhaps none of this would matter if the end result was excellent policy brilliantly implemented, but that has not been the case. I give two examples. One example of failed Treasury policy is tax credits, which my noble and learned friend referred to. Tax credits were very much the brainchild of the Chancellor of the Exchequer. The system has been characterised by fraud and error. The latest figures show fraud and error running at more than £1 billion a year, or 9 or10 per cent of the total amount. Its design - pretty nearly incomprehensible to the ordinary people whom the credits were intended to assist - has resulted in incorrect payments each year. The latest figures, which were released this week, show overpayments each year of £1.7 billion and underpayments of £550 million. The proportion of payments that were correct was only 55 per cent. To date, not a single Minister or civil servant has apologised for the human misery caused.

I do not know what advice Treasury and HMRC officials gave when the system was introduced or when it started to go wrong. Did those civil servants give bad advice, or did they give advice that so conflicted with the Chancellor's desire to implement tax credits quickly that they were ignored? For example, did officials advise that spending half a billion pounds a year on a £25,000 income disregard to conceal the mess was the right or the wrong thing to do? Did they frame their advice to save the Chancellor's face or did he over-rule their advice?

My second example is the efficiency programme that the Treasury has overseen, fronted by Sir Peter Gershon and said to deliver annual savings of£21 billion. The Chancellor claimed late last year that it had delivered £13 billion. We have only to turn to the National Audit Office's version of that, released a few weeks ago, to find that only £3.5 billion,



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The remaining 73 per cent was dodgy in one way or another. Where were the civil servants? Did they know that the figures did not stack up? Did they advise the Chancellor not to claim a value of delivery that was not supported? Did he go ahead anyway?

I do not believe that the Civil Service has lost its independence and impartiality in the past 10 years, although I am sure that it has been severely tested. A generation of civil servants has learnt about the relationship between government and Civil Service under a Government who, by their actions, if not by design, weakened the structure. I hope that my noble friend Lord Strathclyde will affirm that our party is committed to restoring the standards and practices that underpin a strong and independent Civil Service.

1.04 pm

Lord Goodlad: My Lords, I join other noble Lords in congratulating and thanking my noble and learned friend Lord Howe of Aberavon, who introduced today's debate in his characteristically pellucid and penetrating style.

My noble friend Lady Noakes, who has just spoken, rightly lamented the informality which has been sought to be introduced between Ministers and officials. I remember many years ago when I first took office - I think it was me; it could have been two other fellows - in some obscure Ministry, I rolled up my sleeves and said to the Private Secretary coming in with a pile of papers, "We have work of national importance to transact. I shall call you Bernard and you must call me Alastair". I see that the noble Lord, Lord Wright of Richmond, anticipates the reply, which was, "Yes Minister".

In any event, your Lordships' Select Committee on the Constitution is currently preparing a report on the relationship between the Executive, the judiciary and Parliament, which I trust will be properly debated in due course. As the noble Lord, Lord Thomas of Gresford, and my noble and learned friend Lord Lyell of Markyate said, the Lord Chief Justice, the noble and learned Lord, Lord Phillips of Worth Matravers, gave evidence to that committee, and to the committee in the other place, the day before yesterday. It is reported that he said in written evidence that - as the noble Lord, Lord Thomas, said - the judges had known about the new Ministry of Justice only when they read about it in an article by the Home Secretary in the Sunday Telegraph. He is also reported to have said that under the Constitutional Reform Act 2005, which made him rather than the Lord Chancellor the head of the judiciary, the views of the judges should always be taken into account by the Lord Chancellor, and that they were not. He is reported to have said, "We were sidelined; decisions were taken without our participation and we were then told what was proposed".

This situation beggars belief. The short-term answer to the present impasse between the judiciary and the Lord Chancellor is that an inquiry should be held into the right model for the Ministry of Justice and into how the courts budget can be protected from raids by the Prison Service or, as happened recently, the legal aid budget, or, indeed, anybody else. How on

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Earth have the Government got into this mess? Surely there must be a way of avoiding a repetition ofthis fiasco, which echoes what happened in 2003 when the abolition of the office of Lord Chancellor was announced without prior consultation with all those involved, to the incredulous bemusement of everybody, including our friends overseas, resulting in the shambles which followed.

I think that two things are needed. One is a sea change in the attitude of the new Administration towards changes in the machinery of government. It is no longer adequate to say that this is a matter for the exclusive jurisdiction of the Prime Minister in exercise of the royal prerogative - the so-called Ram doctrine. There has in recent years been a substantial expansion in the use of the prerogative. I am not arguing for prior legislative authority for changes in the machinery of government. The era of the statutory creation of departments from the mid-19th century until the 1960s was accompanied by growth in the functions of modern government. The Departments of Health, Social Security, Education, Employment, Agriculture and others all trace their origins to statute. When, after the Second World War, powers were first taken to transfer functions by ministerial order, it was anticipated that new departments would continue to be established by statute. However, in recent decades the prerogative has been exercised to transfer functions, most recently under the Ministers of the Crown Act 1975.

I am all in favour of economising on the need for legislation, but Parliament should in future be consulted about changes in the machinery of government. After all, that is part of what many people think Parliament is for. There is in your Lordships' House and the other place a wealth of experience that could and should be brought to bear in debates on any future eye-catching proposals for changes in the machinery of government in Green Papers, White Papers or substantive Motions.

In your Lordships' recent debate on the Select Committee on the Constitution's report on war-making powers, the noble and learned Lord the Lord Chancellor mounted a robust defence of the status quo in the Government's use of the prerogative, only to have the rug unceremoniously pulled from beneath his noble feet by Jack Straw in the subsequent debate introduced last week in another place by William Hague - with the incontrovertible slogan by Jack Straw that God moves in a mysterious way, as he signalled that the Government now agree that the time has come for making more explicit Parliament's role in approving, or otherwise, decisions on major or substantial overseas deployments of British forces into actual or potential armed conflict. Nothing is more popular than a sinner called to repentance.

In seeking to discourage impetuosity in those under his command, the Duke of Wellington used to employ the expression, "Damn all that eagerness". A change in the Government's attitude to the use of the prerogative, a careful revisitation of the so-called Ram doctrine, and the inclusion of Parliament in considering future decisions about the machinery of government - at the very least where constitutional implications are involved - would avoid the unnecessary fiascos of recent times and lead to better governance and government. I hope

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that the noble and learned Lord the Lord Chancellor will be able to give your Lordships some comfort in that direction in the terms that he used two or three weeks ago, or even more fulsomely.

1.12 pm

Viscount Eccles: My Lords, I need immediately to admit that I went to the same school as my noble and learned friend Lord Howe of Aberavon. However, he was at the time very senior. I knew all about him, but I, being very junior, was unknown; such is life. I need to go cautiously, because many years later my noble and learned friend was my ultimate boss in the then machinery of government. He was, on one occasion at least, following the advice of his Foreign Office officials, briefed in their turn no doubt by the Treasury. He asked me, as the chief executive of the Commonwealth Development Corporation, to agree to a change in the CDC's governance arrangements. I demurred. It would be going too far to say that the Foreign Secretary was cross, but I did receive a sharp rebuke. For a while, until I retired, the governance went unchanged, and then the Civil Service got its way. The CDC has since gone below the radar screen, but that is another story. Such is the machinery of government.

Ever since those days, I have followed as best I could the relationship between the Government and the Civil Service and its impact on the many agencies of government. It is instructive to go back to the days when these matters seem to have been more securely handled - securely perhaps in both senses. There were, in the 1950s and 1960s, lines in the sand between the two parties of government, lines that were redrawn in the 1980s. Since then, both parties have mostly seen the need to move away from their ancient certainties, and now we are all in the muddled middle ground, which is where the electorate wishes us to be, at least in domestic politics, seeking empirical solutions rather than a priori political progress. Indeed, it was that perception that enabled old Labour to become new Labour.

It is a serious matter in two respects: first, it costs a lot of money; secondly, it costs a lot of time. It is a wonderful way to bury something and wait for it to come round again in time. The cost to the country is doubly serious. I read that Sir Stuart Lipton, discussing this matter in connection with the Olympic Games, said that the jibe being made is that the cost of consultants for the Olympics, employed by the Treasury, DCMS, the Olympic Development Authority and LOCOG, led by our noble friend Lord Coe, will exceed the building costs. That may or not be true.

My next point relates to reshuffles. The knowledge that the Prime Minister is going leads inevitably to a semi-paralysis in government. I recognise this from the time when we were in government. When there is a rumour of a reshuffle, everybody starts to look over their shoulders and civil servants do not pay so much attention because they think that the Minister will not be there for much longer. Continual change is a problem. If noble Lords need ultimate proof of the inadequacies of the present system, I remind them of what the noble Lord, Lord Wallace, has just said. Mr John Reid has done nine different jobs in 10 years. It is a recipe for disaster. One cannot expect out of that any quality in policy-making or any quality of experience.

My final point is not necessarily a party-political attack on the Government, because, as the noble Lord, Lord Wallace, said, all governments are under pressure to make instant decisions. It is essential that properly considered policy-making through a properly structured relationship between Ministers and civil servants is restored. Sofa government has got to go. I hope that that will be understood by the incoming Prime Minister as well. I hope that he will understand that the present Prime Minister - I say this with regret - has been far too casual about the standards of conduct in public life. One does not have to listen just toSir Alistair Graham's expressions of outrage at the way in which his committee has been ignored. If Lord Nolan, whom we sadly miss, were here, I think that he would have some very similar things to say. There is no question that standards in this Government have been set far too low down the line - I do not know whether it is done by PR and communications staff in Number 10 or by whomever it is who responds to the press when these issues arise - and I hope that the new Prime Minister will see that the standing of government and Parliament is too low. He will have first responsibility to correct that.



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12.48 pm

Lord Lyell of Markyate: My Lords, if I needed a text to summarise the Prime Minister's position in relation to the policies that I wish to criticise, I would adapt, indeed distort, the famous words of Lincoln: "Conceived in ignorance and dedicated to the proposition that he must at all costs appear radical". I, too, congratulate my noble and learned friend Lord Howe of Aberavon on initiating this important debate and on his powerful and timely speech. I shall reflect briefly on the constitutional changes in relation to the position of the judiciary and the position of the Lord Chancellor as it now remains.

It is astonishing that, in the declining years of his historic term of office, the Prime Minister should have inflicted on the country two such hastily conceived and ill-thought-out policies: first, the decision in 2003 to seek to abolish the position of Lord Chancellor and to push the judiciary out of Parliament into a so-called Supreme Court; and, now, the creation of a new so-called Ministry of Justice, combining two major Home Office functions and the Lord Chancellor's responsibility for the judiciary and the Courts Service. It is quite inconsistent with our historic constitutional procedures that such major constitutional changes should have been introduced without any of the normal processes - without Green Papers, without White Papers, without consultation and without even full and careful consideration within the Civil Service beforehand.

Both policies appear to have been dreamed up by Tony Blair and his Home Secretaries with the very minimum of consultation even within government. First, there was David Blunkett in 2003 and, today, there is John Reid. Both changes come against a background of recent unlicensed criticisms of judges by both those Home Secretaries - I applaud the noble and learned Lord the Lord Chancellor for criticising that - and, given that the noble and learned Lord, Lord Irvine, the former Lord Chancellor, seems to have been sacked largely because he was rightly standing up for the judges against such unconstitutional attacks, the situation in 2003 was literally shocking. That shock is plain for all to see on the face of the noble and learned Lord, Lord Irvine, in the fine portrait of him in the Peers' Dining Room. The artist made no secret of the fact that that is what he saw, and that is what he painted; he did us a service.

The second remarkable thing about these two radical changes is their inconsistency. The argument given for the first was that the position of the Lord Chancellor in the 21st century had become an anomaly - a word that, like "modernisation" and "perception", often seeks to disguise sloppy thinking or specious argument. It was said that his role as a member of both the legislature and the Executive, and as head of and therefore a member of the judiciary, constituted a breach of the so-called doctrine of separation of powers. That was a false analysis, but the present proposal for the Ministry of Justice is undoubtedly a breach of that doctrine and, as the judges rightly point out, raises the prospect - indeed, the inevitability - of real conflicts of interest between the three roles of the new Minister.



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The new Minister has a duty properly to fund the courts so that the judges can do justice and pronounce sentence according to law with adequate funding and without constant, albeit subtle, ministerial and departmental pressures. Out of the same budget, though it may be dressed up to look different, he must also fund the prison and probation services and other training provision to enable those sentences to be carried out. In all his functions, he - and I am looking at the noble and learned Lord, Lord Falconer - is going to feel those tensions. But the one that offends against principle will be the inevitable tendency of the Lord Chancellor to lean directly or indirectly on judges to make do with less than they properly feel that they need to perform their judicial duties in the public interest.

The present Lord Chancellor is at least an experienced lawyer, but his successors are likely to be in the House of Commons and/or to have no legal background whatever. That is what you see in France with the Garde des Sceaux; it works in France for quite different reasons, because the judges are often civil servants for a substantial period of their judicial careers. I cannot believe that we wish to go down that route. As is at least paid lip service to in this House - and I hope sincerely - an independent judiciary is an absolute essential for a free society, as is an independent prosecuting service and law officers who know in their bones that it is their absolute duty to protect through their superintendence the independence from government of the prosecuting process and the independence and high efficiency of the legal advice, however unpalatable, that needs from time to time to be given to the Government.

I revert to what I believe are the fundamental misunderstandings and the consequent damage to the British constitution caused by the changes in 2003 embodied ultimately in the Constitutional Reform Act 2005. Earlier this week on the "Today" programme, Dominic Grieve, the shadow Attorney-General, was asked whether the Conservatives would change the position back if we were in government. He rightly temporised, saying that we would have to wait and see exactly what sort of mess we were in at the material time. However, the prospect and possibility of reverting back would have a sound constitutional basis and should be carefully explored over the coming years.

The problem is that the Constitutional ReformAct 2005 was founded on a fundamental misunderstanding. Our constitutional democracy is one of the most stable and successful in the world, and the foundation of its success is that every power of governance in its widest sense is accountable to Parliament. In relation to the judiciary, accountability lay not through individual opinions on cases - that would be something quite different - but through the Lord Chancellor for the good, sound and properly funded working of the system, just as the prosecution process, which must be equally independent, was accountable through the Attorney-General. Both those high officers of state were answerable and could be condemned if they got it wrong. Indeed, we remember - although there are a lot of historical

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nuances to this - the importance of the Campbell case in 1924, which brought down the first Labour Government.

We need to return to the importance of constitutional propriety and correct machinery if we are to be guided in the right direction. That is why I so strongly congratulate my noble and learned friend Lord Howe on securing this debate. Institutions are important and should be restored.

12.56 pm

Baroness Noakes: My Lords, I congratulate my noble and learned friend Lord Howe on hitting the jackpot by selecting this topic for debate. My modest qualification for speaking today is that I was twice seconded into the Civil Service, where I spent a total of five years. The first time was in 1979, in the Treasury. A couple of weeks after I arrived, the new Chancellor of the Exchequer was my noble and learned friend, which is why it gives me particular pleasure to speak in his debate today. It is to the subject of the Treasury that I shall address some of my remarks.

One thing that I learnt when I became a part of the Civil Service temporarily was the clear separation between what Ministers and the Civil Service did. The Civil Service advised Ministers in an independent and impartial way and Ministers made decisions. That clear separation was reflected in the formal way in which Ministers were addressed by their title and not their names. Now things are different. I am sure that civil servants still try to serve Ministers in an impartial and independent way, but formality has been replaced by familiarity. Even quite junior civil servants now refer to their Ministers by their first name, both in the Ministers' presence and separately. I know that we live in a world where formality reigns and deference has diminished, but I cannot but think that this informality is a sign that the clear distinction between Ministers and those who serve them has broken down.

I also learnt about special advisers, to which several other noble Lords have referred. Their role was to give Ministers advice that was political in nature, which was not the role of the civil servant. Special advisers certainly did not have any direct control over civil servants, and there were not many of them. Not only have their number increased in the past 10 years, but it is now explicitly the case that some of them can direct the work of civil servants. I believe that a very important line was breached when that occurred. We saw it in No. 10, but also in the Treasury.

The Chancellor of the Exchequer, in the face of opposition from his Permanent Secretary, appointed Mr Charlie Wheelan to run the Treasury's press operation. That unhappy experience lasted less than two years. But perhaps of more significance is the case of Mr Ed Balls. Having worked for Gordon Brown in opposition, in 1997 he was appointed as the Chancellor's economic adviser, which was a special adviser post. Two years later, he crossed over into the Civil Service and became the Chancellor's chief economic adviser; he stayed there until 1995, when he

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became a parliamentary candidate for the seat that he now holds. Did anybody believe that Mr Balls was anything other than a political adviser to the Chancellor throughout that whole period? I think not.

In addition, the Chancellor has a Council of Economic Advisers, which has been estimated to cost more than £1 million a year. Five of its members are appointed on special adviser terms. Why did the Chancellor find it necessary to gather advisers around him in this way when he was surrounded by the undoubted intellects who exist in large numbers among Treasury civil servants? Has the advice of his civil servants been replaced and, if so, why was that necessary?

It is not surprising that some of the Treasury's Permanent Secretaries and other civil servants have found working with the Chancellor's regime very difficult. If they did not adapt to the Chancellor's way of doing things, they found it difficult to survive. His way of doing things was well documented in an excellent book by Mr Tom Bower, entitled Gordon Brown. This included bypassing the Civil Service way of documenting meetings and decisions; that was also a feature in the report produced by the noble Lord, Lord Butler, which has already been referred to.

Perhaps none of this would matter if the end result was excellent policy brilliantly implemented, but that has not been the case. I give two examples. One example of failed Treasury policy is tax credits, which my noble and learned friend referred to. Tax credits were very much the brainchild of the Chancellor of the Exchequer. The system has been characterised by fraud and error. The latest figures show fraud and error running at more than £1 billion a year, or 9 or10 per cent of the total amount. Its design - pretty nearly incomprehensible to the ordinary people whom the credits were intended to assist - has resulted in incorrect payments each year. The latest figures, which were released this week, show overpayments each year of £1.7 billion and underpayments of £550 million. The proportion of payments that were correct was only 55 per cent. To date, not a single Minister or civil servant has apologised for the human misery caused.

I do not know what advice Treasury and HMRC officials gave when the system was introduced or when it started to go wrong. Did those civil servants give bad advice, or did they give advice that so conflicted with the Chancellor's desire to implement tax credits quickly that they were ignored? For example, did officials advise that spending half a billion pounds a year on a £25,000 income disregard to conceal the mess was the right or the wrong thing to do? Did they frame their advice to save the Chancellor's face or did he over-rule their advice?

My second example is the efficiency programme that the Treasury has overseen, fronted by Sir Peter Gershon and said to deliver annual savings of£21 billion. The Chancellor claimed late last year that it had delivered £13 billion. We have only to turn to the National Audit Office's version of that, released a few weeks ago, to find that only £3.5 billion,



24 May 2007 : Column 790

The remaining 73 per cent was dodgy in one way or another. Where were the civil servants? Did they know that the figures did not stack up? Did they advise the Chancellor not to claim a value of delivery that was not supported? Did he go ahead anyway?

I do not believe that the Civil Service has lost its independence and impartiality in the past 10 years, although I am sure that it has been severely tested. A generation of civil servants has learnt about the relationship between government and Civil Service under a Government who, by their actions, if not by design, weakened the structure. I hope that my noble friend Lord Strathclyde will affirm that our party is committed to restoring the standards and practices that underpin a strong and independent Civil Service.

1.04 pm

Lord Goodlad: My Lords, I join other noble Lords in congratulating and thanking my noble and learned friend Lord Howe of Aberavon, who introduced today's debate in his characteristically pellucid and penetrating style.

My noble friend Lady Noakes, who has just spoken, rightly lamented the informality which has been sought to be introduced between Ministers and officials. I remember many years ago when I first took office - I think it was me; it could have been two other fellows - in some obscure Ministry, I rolled up my sleeves and said to the Private Secretary coming in with a pile of papers, "We have work of national importance to transact. I shall call you Bernard and you must call me Alastair". I see that the noble Lord, Lord Wright of Richmond, anticipates the reply, which was, "Yes Minister".

In any event, your Lordships' Select Committee on the Constitution is currently preparing a report on the relationship between the Executive, the judiciary and Parliament, which I trust will be properly debated in due course. As the noble Lord, Lord Thomas of Gresford, and my noble and learned friend Lord Lyell of Markyate said, the Lord Chief Justice, the noble and learned Lord, Lord Phillips of Worth Matravers, gave evidence to that committee, and to the committee in the other place, the day before yesterday. It is reported that he said in written evidence that - as the noble Lord, Lord Thomas, said - the judges had known about the new Ministry of Justice only when they read about it in an article by the Home Secretary in the Sunday Telegraph. He is also reported to have said that under the Constitutional Reform Act 2005, which made him rather than the Lord Chancellor the head of the judiciary, the views of the judges should always be taken into account by the Lord Chancellor, and that they were not. He is reported to have said, "We were sidelined; decisions were taken without our participation and we were then told what was proposed".

This situation beggars belief. The short-term answer to the present impasse between the judiciary and the Lord Chancellor is that an inquiry should be held into the right model for the Ministry of Justice and into how the courts budget can be protected from raids by the Prison Service or, as happened recently, the legal aid budget, or, indeed, anybody else. How on

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Earth have the Government got into this mess? Surely there must be a way of avoiding a repetition ofthis fiasco, which echoes what happened in 2003 when the abolition of the office of Lord Chancellor was announced without prior consultation with all those involved, to the incredulous bemusement of everybody, including our friends overseas, resulting in the shambles which followed.

I think that two things are needed. One is a sea change in the attitude of the new Administration towards changes in the machinery of government. It is no longer adequate to say that this is a matter for the exclusive jurisdiction of the Prime Minister in exercise of the royal prerogative - the so-called Ram doctrine. There has in recent years been a substantial expansion in the use of the prerogative. I am not arguing for prior legislative authority for changes in the machinery of government. The era of the statutory creation of departments from the mid-19th century until the 1960s was accompanied by growth in the functions of modern government. The Departments of Health, Social Security, Education, Employment, Agriculture and others all trace their origins to statute. When, after the Second World War, powers were first taken to transfer functions by ministerial order, it was anticipated that new departments would continue to be established by statute. However, in recent decades the prerogative has been exercised to transfer functions, most recently under the Ministers of the Crown Act 1975.

I am all in favour of economising on the need for legislation, but Parliament should in future be consulted about changes in the machinery of government. After all, that is part of what many people think Parliament is for. There is in your Lordships' House and the other place a wealth of experience that could and should be brought to bear in debates on any future eye-catching proposals for changes in the machinery of government in Green Papers, White Papers or substantive Motions.

In your Lordships' recent debate on the Select Committee on the Constitution's report on war-making powers, the noble and learned Lord the Lord Chancellor mounted a robust defence of the status quo in the Government's use of the prerogative, only to have the rug unceremoniously pulled from beneath his noble feet by Jack Straw in the subsequent debate introduced last week in another place by William Hague - with the incontrovertible slogan by Jack Straw that God moves in a mysterious way, as he signalled that the Government now agree that the time has come for making more explicit Parliament's role in approving, or otherwise, decisions on major or substantial overseas deployments of British forces into actual or potential armed conflict. Nothing is more popular than a sinner called to repentance.

In seeking to discourage impetuosity in those under his command, the Duke of Wellington used to employ the expression, "Damn all that eagerness". A change in the Government's attitude to the use of the prerogative, a careful revisitation of the so-called Ram doctrine, and the inclusion of Parliament in considering future decisions about the machinery of government - at the very least where constitutional implications are involved - would avoid the unnecessary fiascos of recent times and lead to better governance and government. I hope

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that the noble and learned Lord the Lord Chancellor will be able to give your Lordships some comfort in that direction in the terms that he used two or three weeks ago, or even more fulsomely.

1.12 pm

Viscount Eccles: My Lords, I need immediately to admit that I went to the same school as my noble and learned friend Lord Howe of Aberavon. However, he was at the time very senior. I knew all about him, but I, being very junior, was unknown; such is life. I need to go cautiously, because many years later my noble and learned friend was my ultimate boss in the then machinery of government. He was, on one occasion at least, following the advice of his Foreign Office officials, briefed in their turn no doubt by the Treasury. He asked me, as the chief executive of the Commonwealth Development Corporation, to agree to a change in the CDC's governance arrangements. I demurred. It would be going too far to say that the Foreign Secretary was cross, but I did receive a sharp rebuke. For a while, until I retired, the governance went unchanged, and then the Civil Service got its way. The CDC has since gone below the radar screen, but that is another story. Such is the machinery of government.

Ever since those days, I have followed as best I could the relationship between the Government and the Civil Service and its impact on the many agencies of government. It is instructive to go back to the days when these matters seem to have been more securely handled - securely perhaps in both senses. There were, in the 1950s and 1960s, lines in the sand between the two parties of government, lines that were redrawn in the 1980s. Since then, both parties have mostly seen the need to move away from their ancient certainties, and now we are all in the muddled middle ground, which is where the electorate wishes us to be, at least in domestic politics, seeking empirical solutions rather than a priori political progress. Indeed, it was that perception that enabled old Labour to become new Labour.

 

This middle ground of domestic priorities greatly complicates the position of the Civil Service. The much-quoted case of the changes to the role of the Bank of England is a rare exception, because the issue was significant and straightforward and thus easy to understand. Most domestic issues are not like that; poverty, social exclusion, drugs and the irreducible minority of young men who each commit over 100 offences a year when not in prison. There are many other issues with no consensus either between or within the main parties. In that confusion, the Civil Service has no easy way of predicting which direction the political system will take, and yet it has to deal with a flood of legislation responding to and subject to instant communications.

It is always easier to see a problem than to propose solutions. Maybe, among the choices to be made, there are two ways forward. First, for all our secular concentration on domestic issues, and for all our confidence in the non-ideological middle ground, ideology has not gone away. Iraq and Afghanistan have shown us that in clear and unexpected ways.

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Then there is Africa, which is unwilling to deal with the recalcitrance of Mugabe and unable to deal with its civil strife. Other examples abound. How does Europe cope with Russia? Is there a positive role for us in Israel and Palestine? Foreign affairs are not subject to the consensus of the domestic middle ground. No Administration will get the level and accuracy of their diplomacy right without the open advice that a skilful and well-resourced Diplomatic Service could again provide. A resurgent Foreign Office would do wonders for both the confidence of the nation and the confidence of the rest of the Civil Service.

The second issue is also one of decentralisation. The answer is not regional government, because, as the ever-practical electorate knows, and showed in the north-east, any issue thought to be regional turns out to be better dealt with nationally or locally, but not in between. What we need is resurgent local government. All the difficult domestic issues fall into the local government front-line, which needs the delegated authority and the funding streams to deal with these accountably.

Regrettably, we run scared of the media, which would never welcome decentralisation. However, if it were achieved, it would free up central government and the Civil Service to take things national forward with much greater professionalism and diligence. We need to stop skating on the thin ice of instant response. No Civil Service can cope with that, and only salesmen pretend to do so.

1.18 pm

Lord Hamilton of Epsom: My Lords, I, too, congratulate my noble and learned friend Lord Howe of Aberavon on introducing the debate, which is certainly widely drawn, giving us the opportunity to talk about how the Government have operated since 1997. It strikes me as rather strange that the Labour Benches seem to have very little interest in this subject. Perhaps that says something about both the Government and the Labour Party and their interest in the constitution generally, which, let's face it, has changed dramatically during the past 10 years, not always for the good.

I think it was the noble Lord, Lord Wright of Richmond, who said that when the Government were elected in 1997 they very much took the view that because the Civil Service had served a Conservative Government for so long it must somehow have been extremely biased. That was used as an excuse for the enormous expansion of the number of political advisers and senior outsiders appointed. One thinks here of Jonathan Powell, who was brought in as chief of staff in Downing Street, no doubt depriving some ambitious civil servant of a prime promotional spot in his career. A large number of political press officers were brought in as well.

Having served my noble friend Lady Thatcher as her PPS in Downing Street when she was Prime Minister, I was honoured - I put it no less strongly than that - to have served at the same time as Charles Powell, now the noble Lord, Lord Powell of Bayswater, who served with her for a very long time. Sir Bernard Ingham was

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there as her press officer at the same time, and also served with her for a very long time. No one would suggest that either of those civil servants had failed their Prime Minister in looking after her interests. It is outrageous to say that somehow civil servants can become over the years so tainted by the Government of the day that they cannot serve a new Labour Government, who, let's face it, have not produced policies dramatically different from those of the Conservatives. The appointment of so many political advisers was a vote of no confidence in our Civil Service and could only have damaged it.

The problems go further than that. Having so many political appointees as press officers is counterproductive. My noble friend Lord King of Bridgwater mentioned that one political press officer had the job of obtaining press references for his Secretary of State as many times as possible. The relationship with the press is always a two-sided business. You have to give favours, provide bits of gossip or whatever, to get somethingin return. That was alluded to by Peter Clarke, the Deputy Assistant Commissioner responsible for terrorism, in a speech on 24 April, when there was a serious problem regarding the leak of information about police inquiries into terrorism in Birmingham. He talked about,

who perhaps look for some way to work favours with certain journalists. That is typical of our problem, and I am sure that he was alluding to special advisers.

We know that the relationship between the Prime Minister and his Chancellor has been bad, but that has been exacerbated by the activities of political PR people who have never missed an opportunity to stir up that trouble and make a political problem within the Government even worse.

One of my great concerns is the use of public servants to present policy. Peter Clarke also defended his senior colleagues in the police in their handling of the debate in the House of Commons regarding periods of detention. Noble Lords will recollect that MPs were rung up by their chief constables who were very keen to permit 90 days' detention without trial and thought that they should lobby their MPs to make that happen. Peter Clarke asked if his colleagues should have remained silent. That was a rhetorical question to which he expected the answer to be "no". I say unequivocally "yes", they were expected to stay silent. Senior police officers should lobby Ministers with what they want, and then Ministers should be in the position of persuading Parliament, using the Whips and everything else that they have at their disposal, to get legislation through. It is not the job of chief constables to lobby Members of Parliament on legislation. The proposal for 90 days was soundly beaten in the House of Commons, a good outcome. I hope that the chief constables have learned their lesson and will not go down that road again.

Not only are chief constables used by the Government but the military have found themselves being wheeled in. I am sure that that is to do with the view taken by the Government that military officers in uniform have much more credibility than Ministers. When the controversial issue of whether we should go into Kosovo

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was being considered, I was concerned that the noble and gallant Lord, Lord Guthrie - to whom I have written to say that I would mention him - started writing articles in left-of-centre newspapers advocating that we should go to war. Under any interpretation of the constitution of this country, the decision to go to war is for Ministers and the Government. The role of the military is to carry out that decision when it has been made. It was a retrograde step that has been continued by a number of chiefs of staff in promoting such actions. We must get back to the constitutional position whereby Ministers should defend policy and the military carry it out.

This reached an absurd point when hostages were recently kidnapped by Iran. At that stage, Ministers took the view that they should go completely schtum. We did not hear from a single Minister in the Ministry of Defence regarding what was going on, despite widespread interest among the media and the public. I hope that we will return to a clear constitutional position in which Ministers and the Government are responsible for setting down public policy, while civil servants, whether in uniform or otherwise, are there to give advice and to carry out the policies decided by Ministers.

1.25 pm

Lord James of Blackheath: My Lords, the noble and learned Lord, Lord Howe, spread before us a great feast of wonderful things to eat, and we can all choose what we would take, but I doubt that we can finish the entire banquet, because there is so much on the table. All we can do is mark some factors for future reference and hope that the cakes are baked for us again.

I would like to talk about my experiences of the accounting officer system and the role and function of the Public Accounts Committee. I am talking very much about the departmental role, which has been a constant theme in our debate. I had never heard of an accounting officer until about 4.10 pm on 4 September 2000, when I emerged from the boardroom of the New Millennium Experience Company as its new executive chairman. I was confronted by two individuals who announced themselves as members of TSol - I had never heard of it, but they turned out to be Treasury solicitors, who I now know to be government enforcers who have a level of fearsome authority that would make the Praetorian Guard in imperial Rome look like Mary Poppins in a good mood.

They told me that I had to do something immediately about agreeing the appointment of my accounting officer. "What is an accounting officer?", I asked. They said, "The person responsible for reporting everything that the department and the Permanent Secretary need to know to pass on to the Public Accounts Committee". I told them that I was not going to have anyone do that for me and that, if I was going to be executive chairman, I would do it myself. "No, you can't", they said, "you mustn't do that". I said, "In that case, find yourselves another chairman". They said that they would go away to talk about it; they came back and said, "Okay, you can be the

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accounting officer but you must agree to go on a training course to be taught how to do it". We agreed on that basis.

The next day I received a telephone call from the Permanent Secretary, who said that he wanted to help me in this matter and asked me to talk to him. I said that I would, so long as I could take my solicitor with me, because I never go to anyone who wants to help me without a solicitor. At the start of our meeting, the Permanent Secretary gave a detailed explanation of the role of accounting officer. When I asked exactly what an accounting officer does, he said, "You die for your Permanent Secretary". I said, "Really? Who are you going to die for?". He said, "I am going to die for my Minister if I have to". I said, "Lucky Minister, but I did not know that government was quite as awful as this".

The Permanent Secretary said, "Look, I'm really worried; I do not think that you have the experience to be an accounting officer. You should not do it. There is a Public Accounts Committee meeting in four weeks and you will never be prepared in time". We discussed the issues that might arise; he was particularly concerned about two matters being discussed in the press. The first was that I had said that the accounts of the Dome were a shambles, and the second was that I had criticised the role of Jenny Page, the previous boss of the Dome. I said that it was true that I had said the Dome's accounts were a shambles but added, "I have never said a word against Jenny Page, who I regard as a saint comparable to Joan of Arc - indeed, they both suffered the same fate".

The Permanent Secretary said, "You can't go on like that. We must give you some further help to ensure that you can handle this and give the right answers to the Public Accounts Committee". I said, "There is no way that I can avoid telling the truth to the Public Accounts Committee, is there?". He looked across the table at me and said, "Pass. You need to protect previous accounting officers. Lying is unfortunate, but the extent to which you say what happened before was wrong can give difficulty". At this point, I pressed the matter further and asked him what on Earth that meant. I said, "I cannot say anything which is a public statement of untruth". He said, "You have an obligation to protect the position of all accounting officers, including my own. You don't lie but you don't go out of your way to make the position of previous accounting officers difficult". I replied, "I cannot lie in response to a direct question from the Public Accounts Committee", and there the matter rested more or less, with a further promise of more help to come.

The next morning I got another phone call from the Permanent Secretary saying that he had arranged for the Civil Service training college to run a special course for me alone to teach me how to deal with the Public Accounts Committee. I duly presented myself at the training college, where I found that a complete mock Public Accounts Committee had been assembled, comprising some dozen former Permanent Secretaries and senior civil servants, all of whom had been armed with questions that the PAC might like to know. They ran the questions past me and made a video recording

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of everything that I said. They then came back and analysed all my answers. They told me what I should have said instead and rehearsed me until I was word perfect. At that point, they thought that I was fit to be let loose on the Public Accounts Committee.

In the event, that worked perfectly, except for the fact that, as I sat down, I was overcome by a dreadful attack of the illness known as CRAFT, which your Lordships will know stands for "Can't Remember A Flaming Thing". I could only tell the Public Accounts Committee the facts as I truly remembered them. The irony of it is that, today, the video recording of that PAC is now used by the Civil Service training college as the model of how to handle a difficult Public Accounts Committee.

This was not a political initiative. No part was played in it by the noble and learned Lord, Lord Falconer, in his former earthly manifestation as Minister for the Dome. Never at any stage did he try to persuade me or impose anything on me. However, I think that here we have a system created by the Civil Service, which is frightening itself more than anyone else with the apparent authority of the Public Accounts Committee and accounting officers. It should stop.

Government tell us that we should have a process of governance in business, but why do they not do the same? They have created a perfectly good governance system, including the role of the compliance officer, which does not have the stark, harsh realities of the accounting officer but does everything else in terms of keeping an individual in line with the procedures of government. Let us have compliance officers and stop the current nonsense. The present arrangement opens up a department to bringing undue and unreasonable pressure to bear on individuals, however it goes about it, and is aimed at telling not what the Government or the department want to hear but its version of the truth. That is wrong.

1.33 pm

Lord Norton of Louth: My Lords, I, too, congratulate my noble and learned friend Lord Howe of Aberavon on bringing this very timely Motion before the House. He has performed an invaluable service.

As my noble friend Lady Shephard touched upon, it is essential to put the machinery of government and the relationships at the heart of government in a constitutional context. The fragmentation of relationships within the political system, between government and the Civil Service and between government and the courts, stems from a tendency by government to look at the constitution in essentially disparate and discrete terms. There has been no attempt to look at the constitution holistically, a failure that has led to many of our current constitutional problems.

We can define a constitution - and we have one, albeit uncodified - but what is it for? Does it exist to enable majority will to prevail or does it exist for the purpose of constraint, of enabling certain fundamental values to take precedence over the possibly transient will of the majority? There is a debate to be had about what we want our constitutional arrangements to deliver. The problem has been that the Government

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have embarked on a raft of constitutional changes, from devolution through to creating new departments, without relating them to the constitution as a whole and without therefore being able to identify the constitutional end-point. What type of constitution are they seeking to achieve? What will our constitution be in five or 10 years' time?

When I put these questions in a debate in December 2002, the then Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg, conceded that the Government did not have an overarching theory of constitutional change.

That situation is compounded by, or arguably stems from, the fact that the Prime Minister has no developed interest in constitutional affairs. There is a related problem, which is central to this debate: not only does he not have an interest in constitutional affairs but also he entered government with no experience of government. He had no understanding of the relationships at the heart of government and - bringing my points together - no obvious grasp of why those relationships existed in the way that they did. Unlike Gordon Brown, he has shown no intellectual curiosity as to how and why our constitutional arrangements exist as they do. When constitutional change has not worked out as intended - as we now see in respect of a number of measures - there is no obvious reference point. There is nothing to hold them together and no future goal to which they have to be adapted. The result is a constitution that is in danger of lacking coherence.

This, I believe, provides the context for explaining why there are now serious problems in the relationship of government to the courts and to the Civil Service. The Civil Service exists to serve Her Majesty's Government. It is not an extension of the party in power. As the noble Lord, Lord Lipsey, explained, Ministers and civil servants fulfil distinct tasks. The relationship is one of interdependence. It has developed on the basis of mutual respect, enabling each to get on with their distinct but mutually reinforcing roles. That relationship has been undermined by a failure on the part of Ministers, or at least some Ministers, to understand the respective roles of Ministers and civil servants. I am not arguing that there is not a case for reform of the Civil Service - although the problem of what the Prime Minister has called "departmentalitis" is not attributable solely to officials - but change has to proceed on the basis of appreciating the benefits of the relationship that has existed. The eroding of that relationship has led, necessarily, to demands for a Civil Service Act.

The relationship between Ministers and the judiciary is also increasingly fraught and in danger of becoming worse. The Government introduced the Human Rights Act, but Ministers then objected when the courts interpreted its provisions in ways they disagreed with. The problem has been exacerbated by the provisions of the Constitutional Reform Act and the hasty creation of a Ministry of Justice.

Having the Law Lords as part of your Lordships' House has delivered benefits for both Parliament and our highest domestic court. Each has some appreciation

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of the role of the other. This House also constitutes a useful buffer between the Executive and the courts. The creation of a Supreme Court has the danger of serving to isolate the judges, making them more vulnerable to attack by Ministers. That sense of isolation is more immediate with the creation of a Ministry of Justice. I am not against such a ministry in principle but everything rests on implementation. In practice, the way in which it has been done is contributing to that sense of vulnerability.

We can address each of these problems, but my argument is that we have to locate them within the constitution we have, or that we want, for the United Kingdom. We have to address the problem holistically. Otherwise, we are in danger of further fragmentation and of ending up with a constitution that is, in essence, incoherent.

Gordon Brown has said that he wishes to "renew the constitution". We need to be clear about what is being renewed and why. We cannot do it on the hoof. I revert to a proposal I made when we last debated the role of the Home Office on a Motion of my noble friend Lord Fowler. I put the case for a royal commission on the constitution. That would be the way to look at the constitution and the relationships that are necessary to deliver what is expected of it. If we are going down a road of further constitutional change, we need a map. That has been lacking. The need for an exercise in cartography is now compelling.

1.39 pm

Baroness Park of Monmouth: My Lords, once again we are deeply indebted to the noble and learned Lord, Lord Howe of Aberavon. The noble Lords, Lord Wright of Richmond and Lord Lipsey, have between them said what I wanted to say, but far better, about the decimation of the foreign service and the growth of a third world of private advisers in the UK which has so largely eroded the role of the Civil Service and usurped to some extent its function as dispassionate adviser and its duty to advise and warn. I have had to rewrite my speech; I hope noble Lords will forgive me if I cannot always read my own writing.

What has gone wrong has been the simultaneous arrival of the unaccountable political adviser in large numbers, both inside and outside government, and the failure of both the Cabinet and the House of Commons to protect our vital political and defence interests and, above all, to restrain one department - the Treasury, or perhaps I should say an over-powerful Chancellor - from making critical decisions, particularly in the field of defence and foreign affairs, based solely on immediate financial considerations: money for the Treasury. An example is the long-term and nearly irreversible cost to our influence in the world, especially in the UN - the noble Lord, Lord Wright of Richmond, made the point about the Falklands - derived from saving the cost of a small post at the expense of long-term influence. I could give many similar examples from defence - not least that, since the Navy cannot have bases everywhere to support an, often unforeseen, operation, it is all the more important to preserve the right diplomatic

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relationships with countries which will allow us access to bases when we need them. That point was made in one of the defence papers.

Equally, the creation of so many think tanks, the Prime Minister's own strategic unit among them, has not only done serious damage to the departments of state which should be the prime source of advice and action, particularly in foreign and defence affairs, but it has helped to create expensive armies of special advisers and experts to produce glossy reports. The unit's paper Investing in Prevention employed two FCO, three DfID and three MoD people, and 32 others, including the ubiquitous McKinsey, to advocate closer co-operation - and many more analysts to ensure co-operation - between the FCO, DfID and the MoD in Whitehall; and to have more "thematic strategies" in the UK to guide priority setting for country engagement. No one seems any longer to recognise that the right answer is probably to return to embassies, where defence and commercial attachis, the British Council and development worked together under one roof, and where DfID focused on development but was not regarded as the voice of the whole national policy. In a number of countries, particularly Africa, the large, independent DfID missions are already coming to be regarded as the real voice of the UK. Do we want that?

Let us not forget the vital role of the embassies in the fight against terrorism and the practical control of immigration through, for instance, the biometric data produced by our embassies in Ethiopia, Eritrea and other African countries. In tackling increasingly complex situations, there is a need for much more coherence and, above all, what was called in the Army "boots on the ground". It is no use living and planning in London. The interests of the UK, as the FCO has itself said, are best served by having an extensive network of overseas posts operated, full time, by FCO personnel. Posts wholly staffed by the locally engaged would be an invitation to trouble if there were ever a coup.

Where posts have had to close - in central America, for instance - or where the FCO cannot open them because of financial constraints, such as Kyrgyzstan, this country is inevitably likely to suffer a diminution of trade, influence, first-hand information and, not least, continuity. In the old days, not so very long ago, you served in a country as a very junior person. You probably went back 15 years later, and at once had access where it was needed because you had grown further and so had your friends in the country. That is missing from a constant stream of lively, interesting special advisers who do something for five years and them move on to do something else. There is no continuity there.

Perhaps one of the most dangerous results ofthe detachment of DfID from the FCO by the Government, however, has been the resulting failure to relate its activities, where they are political, to the central foreign policy of this county, of which it should be a part. I have no doubt that there is a great deal of consultation in this country, but perhaps not enough. There have been problems in Ethiopia, for instance. But the most glaring example of the danger of giving DfID independent status must surely be

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Clare Short's letter of November 1997 to the Mugabe Government when she assumed power as the Secretary of State for DfID:

She went on:

It is not surprising that "New Africa", a glossy and much-read magazine, published a special supplement in May, paid for by the Zimbabwe Government, which printed her letter - which was in other ways a deeply patronising document - in full. It remains a valued tool in Mugabe's campaign against Britain.

1.46 pm

Lord McNally: My Lords, the noble Lord, Lord James, described what the noble and learned Lord, Lord Howe, had put before us as a banquet. No greater tribute could be paid to the initiative of the noble and learned Lord in bringing this debate tothe House than the quality of the contributions. As the Prime Minister-designate goes off on Recess, he would profit from taking with him the Hansard of this debate. It has not been a partisan debate. The introduction of the noble and learned Lord, Lord Howe, contained an element of the case for the prosecution, as any good QC would use, but I am sure that he has a worthy adversary in the noble and learned Lord the Lord Chancellor, who will put the case for the defence. In the main, however, there has been a recognition that many issues that we have been talking about predate 1997 and will face us whatever and whoever is in Downing Street in the future.

Before 1997, I participated in one of the most useful cross-party exercises, serving on a committee jointly chaired by Robin Cook and my noble friend Lord Maclennan, which looked, on behalf of the two then opposition parties, at the need for reform of governance in its widest sense. My noble friend Lord Maclennan referred to the more sure-footed approach to reform shown in the first period of Labour government, which was partly because of the thorough work done by Cook and my noble friend.

Let me slightly depress, or perhaps inspire, your Lordships with what is coming down the track. Last night, I attended the Royal Society of Arts launch - chaired by the noble Lord, Lord Filkin, and attended by Jack Straw, Mr Hutton and other Ministers - of a report by a Labour think tank, the Public Service Reform Group. Among the ideas in its report are suggestions for a deep and lasting reform of the Civil Service, major devolution of power, a new deal between central government and public service, a democratically elected House of Lords, proportional representation in local government and a Bill of Rights to enrich the citizen/state relationship.



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So I say to those who were thinking that the steam had gone out of the desire for reform that it is clear that there is plenty on the agendas of these groups. Before the Conservative Benches get too indignant,I should add that there is a regular stream of suggestions coming from various Conservative think tanks and study groups. That means that, whatever happens in our politics over the next few years, constitutional reform will remain on the agenda. I have sometimes disagreed with the noble Lord, Lord Norton of Louth, but I think that his idea of havinga royal commission on the constitution is worth studying. If there is such fertility of ideas in these outside groups, it is worth seeing how we could bring them together in an over-riding way.

When summing up a debate, it is unfair not to mention noble Lords who have contributed. Without being an expert on these matters, I think that when the noble and learned Lord the Lord Chancellor replies the House will want to hear a considered response to the concerns about the judiciary that were expressed on all sides with considerable weight.

There is a need to get something clear from the Government about a Civil Service Act. The situation is ridiculous. The Cook-Maclennan agreement committed to a Civil Service Act and almost every inquiry has to a greater or lesser degree come down in favour of one. We are delighted to see the noble and learned Lord the Lord Chancellor in his place. We usually get the noble Lord, Lord Bassam of Brighton, in his role as the good soldier vejk, dead-batting proposals by telling us that preparation for the Civil Service Act is under way somewhere in the machinery of government. If the Government are not going to implement a Civil Service Act, let them explain to this House the good reasons why. There has been enough evidence in speeches today to put forward the idea that, if we are going to go through a further period of reform of our public service, we must, in fairness to those who work in it, give them the guarantee and underpinning that comes from a Civil Service Act.

Nearly 10 years ago, I had the pleasure of serving on a committee of this House under the noble and learned Lord, Lord Slynn, that looked at the impact of the changes that had taken place under the Thatcher and Major Governments on the morale of the Civil Service. We came to the conclusion that the ethos of public service that had been part of the pride of the British Civil Service was still intact. Ten years on, it would be interesting to have another inquiry about the impact on the Civil Service of the Labour Government's reforms. I do not think that the Government would be as enthusiastic as they were in 1998, when they thought that the committee was going to produce a litany of the wickednesses of Thatcherism. Nevertheless, the case for a Civil Service Act is important. I am always mindful of the remark made by the noble Lord, Lord Sheldon, that the two great gifts we inherited from the 20th century are our Civil Service and the BBC. These Benches can take some pride in our Civil Service because it is based on the Northcote-Trevelyan principles of selection on merit and quality of candidature.



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It is extremely difficult to cover all the points that have been made in this debate. On freedom of information, I disagree with the noble Lord, Lord Dean, because I think that it has helped to end the culture of secrecy to a certain extent and should be supported. I agree with him on the need for scrutiny of secondary legislation. The Merits Committee has been doing an excellent job, but we have to look further at how we deal with such legislation. There is talk from all parts of House about further devolving powers from Whitehall and Westminster, although there is a debate about whether power should be devolved locally or regionally.

I think that the malevolence of special advisers is overemphasised. The number of them in the Civil Service is relatively small, and there is now an impressive group of alumni special advisers, including the present Leader of the House of Commons and former Foreign Secretary and the present leader of the Conservative Party. The introduction of people into politics by coming through the system has its benefits. In 2003, the Committee on Standards in Public Life produced a good report about special advisers, which is worth revisiting.

We had a call for a strong Foreign Office, especially from the noble Lord, Lord Wright of Richmond, and the noble Baroness, Lady Park, and I endorse it.

We face a broader challenge in the debates about quality and choice, whether the public service should be a provider or a commissioner and the issue of centralisation or decentralisation. This is a big agenda, and it may take a royal commission. It certainly merits cross-party co-operation and a little humility on all sides. Let us remember that as the Prime Minister walks out of Downing Street, people will still be singing,

1.57 pm

Lord Strathclyde: My Lords, I join all noble Lords who have spoken in expressing my gratitude to my noble and learned friend Lord Howe for introducing this debate. In office, he was known for his impeccable respect for the conventions of public life, and he is right to highlight their importance. Public confidence in our democratic system depends on appropriate government conduct.

We are also grateful to have the noble and learned Lord the Lord Chancellor with us. He is probably the finest exponent since the late Lord Goodman of what the noble Lord, Lord Butler of Brockwell, so memorably described as "sofa government". I have no doubt that, from the perspective of the sofa, he will give us a typically relaxed response, but I trust it will not be complacent, for the scale and range of concern at the recent style of government is evident from many of the compelling contributions to this debate.

Noble Lords have identified consistent areas of concern: an Executive with too much power, policy making driven by short-term headlines with too little thought given to the difficult and necessary task of implementation and the cavalier treatment of Parliament, the Civil Service and constitutional conventions. I join

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with those who argue for a strategic study of our constitutional arrangements, perhaps even a royal commission. The state of our union, the role of Parliament and the independence of the judiciary all need to be looked at and re-examined in the light of the changes that have taken place over the past 10 years. As my noble and learned friend Lord Howe concluded, the result has been restless and poorly thought-out change. In the NHS, in endless Criminal Justice Bills and in the constitution, we have seen the Government ceaselessly pushing through so-called reforms at great cost but with minimal coherence. They called it joined-up government; how sad that it lacks the joins.

Too often, when faced with a problem, the Government's response has been to wheel out a new law. Badly thought-out legislation is passed with great fanfare to win short-term publicity, only to require further "reform" two or three years later. More care is given to spinning headlines than to drafting a Bill or assessing its effects. The effect has been longer and more complex legislation, frequently without proper scrutiny.

As my noble and learned friend pointed out, the other place has been hobbled by overuse of instruments to curtail time. In the half century before 1997, only 67 Bills were guillotined. Under this Government, 94 Bills were guillotined in their first six years alone; and programme Motions limiting Commons scrutiny are now routine. The Commons filter has broken down; it needs to be restored.

Deplorably, action was recently threatened to impose time restrictions on this House. Thanks to the committee chaired by the noble Lord, Lord Cunningham, the 60-day rule was buried; and it must never be resurrected.

Far too much strain falls on your Lordships' House to make up for the inadequacies of the other place as a legislative body. It has only limited authority to insist on its case, however right it may later prove to be, as on ID cards, postal ballot fraud or, this week, on HIPs. Parliament must be brought back to the centre of the nation's affairs. Government is strengthened by securing the support of a strong Parliament.

Respect for this Government has suffered because they have sidelined Parliament by making major policy statements outside it. Indeed, there are now three Chambers of Parliament, and the supremacy of the "Today" programme studio is undisputed. That must stop.

Cabinet government, too, has been undermined. That damages the quality of government. The three most recent Cabinet Secretaries have all commented adversely on the modern style of government, as has almost every noble Lord speaking today. Properly conducted Cabinet government, the full process of collective discussion with proper papers and minutes, is the basis of effective government; it must be restored.

The Butler report revealed that crucial meetings on the legality of the Iraq war, some involving the noble and learned Lord the Attorney-General and the noble and learned Lord the Lord Chancellor, were not minuted. Why not? Will the noble and learned Lord

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tell us why not when he makes his winding-up speech? Was it because of fear of exposure through the Freedom of Information Act? Why not tell us now? After all, he was there.

Expenditure on publicity and spin has expanded in inverse proportion to time spent on considering decisions. Public funds spent on advertising in 2004 rocketed by nearly 20 per cent to £189 million, leaving Whitehall second only to Procter & Gamble in advertising expenditure. It is hard to say whose soap is softer or dissolves more swiftly. Would that the same care were attached to policy planning. The most senior of the judiciary had barely half an hour's notice of the abolition of the office of Lord Chancellor, one of the most extraordinary examples of insouciant discourtesy recorded in modern public life. How much notice did they have of the creation of the Ministry of Justice? Will the noble and learned Lord tell us? After all, he was there on both occasions.

There is unwillingness inside government to accept responsibility. Indeed, failure too often goes rewarded. Blundering Ministers, who should be scouring the atlas for the Chiltern Hundreds, are instead anticipating promotion. Even departments, publicly condemned by their own Ministers - a thing astonishing in itself - as "not fit for purpose" get rewarded. Home Office bonuses have reached £3.6 million, a staggering 75 per cent rise in five years, despite serious failures that put public safety at risk.

My noble and learned friend rightly mentioned encroachment on the Civil Service by political interference. The Prime Minister's first act was, disgracefully, to give Mr Alistair Campbell unprecedented executive power over civil servants. Decisions are taken by claques of advisers meeting without civil servants. The number of special advisers has more than doubled since 1997, while their cost has more than trebled. The noble Lord, Lord Lipsey, was so right when he examined the qualitative difference between special advisers now and then.

The noble Lord, Lord Levy, whose resignation as envoy this morning will no doubt be greeted with consternation in capitals across the world, is only one example of the friends of people in high places being used to bypass proper civil and diplomatic service channels.

The existence of an independent, professional and objective Civil Service has been a resource of incalculable importance to the British state. This Government have never fully understood the nature or value of that resource, and that lies behind many of their worst decisions. How much I agree with my noble friend Lady Noakes that Civil Service independence must be enshrined in statute. I join the noble Lord, Lord McNally, in asking for a response to the perennial question about a Civil Service Bill.

The concerns expressed today by my noble and learned friend Lord Howe, the noble Lord, Lord Thomas of Gresford, and many others over judicial independence are also deeply disturbing. Has the noble and learned Lord the Lord Chancellor yet reached agreement with the judiciary on ring-fencing its resources and protecting it from political interference in his new Ministry of Justice? If not, why is he plunging ahead with such

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haste? When this process began, many on all sides warned where it might lead, but the noble and learned Lord gulled the judiciary into thinking that their independence could never be threatened. He promised a "concordat"; yet within a year the department that promised it was abolished. Now we see the looming reality: political responsibility for judicial affairs assumed by ambitious career politicians in another place with the power to pull the purse strings if judges do not do the Government's bidding.

Many may laugh this off, but how do we know that the noble and learned Lord, for instance, will still be there in a month's time and that the judiciary will not be lining up to report to the next Mr Blunkett? Yet again major change, effected with neither forethought nor consideration for the balance of a constitution that had guaranteed peace and freedom in these islands for the past 250 years - a record unequalled anywhere in the world.

Why do the Government continually alter things to no obvious benefit or purpose? Why do they persist in all this tinkering with policy and shuffling of the structures of government? What is behind it all? It remains a mystery. But what is abundantly clear is that there is something rotten in the state of modern British governance, and we will have to call on some old wisdom and ancient virtues to set it right.

2.08 pm

The Lord Chancellor and Secretary of State for Justice (Lord Falconer of Thoroton): My Lords, I join noble Lords who participated in this timely debate in congratulating the noble and learned Lord, Lord Howe of Aberavon, on securing it. I congratulate him also on the quality of his speech; like all his speeches, it was incredibly impressive. He also started the debate in a tone that led to a very impressive non-partisan discussion.

The noble and learned Lord is a dangerous man because he is a powerful advocate. He stands before us today as an advocate of the need to be careful about certain changes. It is not without interest that he was, if history is to be believed, a major conspirator in one of the most major constitutional changes ever to strike this country: our entry into the European Union. Again, if history is to be believed, he drafted the European Communities Act 1972, the first Act in recent times to change - I do not complain about this; it was the right thing to do - parliamentary sovereignty by acknowledging a higher power to Parliament. That has led to substantial changes not only in our constitution but in the quantity of law as well. It is therefore right that we should acknowledge his role in major constitutional change and listen very carefully to what he has to say about how we go about it in future.

As quickly as possible, I take up the invitation of the noble Lord, Lord McNally, to deal with the important issue of the independence of the judiciary, without in any way undermining any other contributions made, to which I shall come. The noble Lords, Lord McNally, Lord Strathclyde, and Lord Thomas of Gresford, the noble and learned Lord, Lord Howe, the noble Lord, Lord Norton of Louth, and the noble and learned Lord, Lord Lyell of

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Markyate, all referred to that. As noble Lords will know, one of the main responsibilities of my post as Lord Chancellor is to protect the independence ofthe judiciary. That independence is a fundamental and long-standing aspect of our constitution. Our constitution depends on it. An independent judiciary is essential to the rule of law.

William Blackstone wrote in his Commentaries on the Laws of England, that judicial independence is,

I agree completely with that assessment and I believe that our system protects the independence of the judiciary more clearly than ever before.

 

That is what we achieved in part by the passage of the Constitutional Reform Act. The noble and learned Lord, Lord Howe of Aberavon, and the noble Lord, Lord Thomas of Gresford, suggested that the creation of the Ministry of Justice may either change the role of the Lord Chancellor or, as the noble and learned Lord, Lord Howe, put it, put him under intolerable conflicts that lead to a reduction in the defence of the independence of the judiciary. I reassure them that that is not the case. The creation of the Ministry of Justice does nothing to reduce the responsibilities of the office of Lord Chancellor in protecting judicial independence. Nor, in practice, does it reduce his ability to do so. The Lord Chancellor's statutory duty to defend the independence of the judiciary and to uphold the rule of law remains and the new ministry will continue to enhance the close working relationship that has developed since 2005 and before between the Executive and the judiciary.

I take this opportunity to set out the constitutional position, because it is of great importance in the current public debate. Section 1 of the CourtsAct 2003 places a statutory responsibility on the Lord Chancellor properly to resource the courts system. Schedule 7 to the Constitutional Reform Act 2005 ensures that, short of primary legislation, responsibility for the courts remains with the Lord Chancellor. Section 3 of the 2005 Act places a specific obligation on the Lord Chancellor to preserve the independence of the judiciary. So the person who has specific obligations to preserve its independence also has responsibility for running the courts.

The courts are administered by Her Majesty's Courts Service, which is an executive agency of the Ministry of Justice. It is not a quango but a part of the ministry. It is accountable to the Lord Chancellor, who is in turn accountable to Parliament. Success in running the courts requires that the management of Her Majesty's Courts Service is left to get on with the operational management. A successful partnership between Her Majesty's Courts Service and the judges is vital to that success.

Ministers, including the Lord Chancellor, should interfere rarely in either budget or management issues, subject only to the Lord Chancellor being obliged to comply with his Section 1 duty properly to resource the Courts Service. There will be times - for example, in relation to big budgeting issues or issues of legitimate public concern such as court closures - when the Lord Chancellor will want to be involved or

24 May 2007 : Column 808

that it is right that he should be involved. On such budgetary or management issues, agreement with the judges will always be sought.

Since I have been Lord Chancellor, although there have been issues on which points have been raised by judges - for example, on budgetary cuts which have occasionally been required for the courts - the judges and Her Majesty's Courts Service have always co-operated fully. The current structure was set up in the wake of the concordat and the Constitutional Reform Act 2005. It was set up and endorsed in the context of the Lord Chancellor not being a judge or head of the judiciary. It was set up in the context of the Lord Chancellor being - if not now, in future - a full-time politician.

The creation of the Ministry of Justice also does not change the nature of the Lord Chancellor, who remains both a non-judge and subject to the Courts Act 2003 and the duties under the Constitutional Reform Act 2005 to defend the independence of the judiciary. Equally and rightly, the Lord Chancellor retains responsibility for the courts.

As noble Lords have pointed out, the creation of the Ministry of Justice gives the Lord Chancellor additional responsibility and a larger budget, including that for prisons. There needs to be a clear and unambiguous procedure ensuring both that judges are involved in the setting or changing of the courts budget and that the Lord Chancellor's involvement in budgeting and managerial issues is exceptional and transparent. There need to be efforts to reach agreement, which I have always found possible. If there is not agreement, there need to be means to resolve such disagreement. Although the Lord Chancellor's view on the administration of the courts should ultimately prevail, in the unlikely event of a disagreement continuing, such disagreement can be reported to Parliament by either the Lord Chancellor or the Lord Chief Justice. That reflects the current position. The Lord Chancellor's obligation to ensure that sufficient money is available for the courts is underlined by Section 1 of the Courts Act 2003.

I believe that there need to be in place clear and transparent arrangements to ensure that the partnership arrangements and the relationship between the judiciary and the Executive can work as I described. In the past few weeks we have substantially negotiated those arrangements in detailed documents, which are now largely agreed. Those arrangements have been discussed between my officials and senior members of the judiciary. We are very close to agreement on the detail of those arrangements.

However, the judges pose one additional question. If our objective is to achieve a situation wherethe courts' budget and independence is properly preserved, is it necessary to have the courts run by an agency separate from central Government and significantly accountable to the judges? My answer to that is an emphatic no. No such separate agency is required, nor would it be right to have one. There must be proper parliamentary accountability for the provision of the courts. There needs to be profound

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judicial involvement; there needs to be partnership; and, where there is disagreement, Parliament needs to know.

That approach is the basis by which I have proceeded with the Ministry of Justice. That is the basis on which the working party, which has sought to negotiate those arrangements, was set up on 19 March 2007 - 10 days before the announcement that the Ministry of Justice was to be created on 9 May. The Lord Chief Justice, aware of those arrangements, said on 2 April - a few days after the announcement was made, and after the arrangements had been set up - that, subject to safeguards to protect the due and independent administration of justice, there would be no objection in principle to the creation of a new ministry with responsibility for both offender management and the courts service.

Subject to reaching final agreement, which we have not yet done, we will be in a position to publish the detail of what has been arranged. The right course at this stage is to put those arrangements in place. By all means let us review how they work having given them an opportunity to work, but they reflect how our arrangements have worked in the past. The creation of the Ministry of Justice does not, in my view, in any way affect the independence and standing of the judiciary, as long as those arrangements are transparent and open, as I believe that they are.

We have also discussed today the position of the Civil Service. The Civil Service is part of the Executive and, as the Civil Service Code puts it, its role is to,

The Civil Service is rightly impartial. It is not intended to be independent of the Executive, because it is part of the Executive. The noble Lord, Lord Norton of Louth, rightly said that Ministers and civil servants have an interdependent relationship with each other. That said, the Civil Service is founded on the principle that civil servants are appointed through fair and open competition, without political interference, and that they are promoted on merit rather than due to any sort of political affiliation.

Those are long-standing principles, but not ancient ones. "Where is the application of the principle of public competition to stop?", asked Queen Victoria nervously when it was first proposed by Northcote and Trevelyan, two officials from Her Majesty's Treasury. Their proposals are now enshrined in the Civil Service Code, which defines the core values of the Civil Service as integrity, honesty, objectivity and impartiality. The Government are utterly committed to those core values. A new Civil Service Code was launched on 6 June 2006. The code is now more relevant and accessible to all civil servants, whatever their jobs and wherever they work, whether in Whitehall or in a Jobcentre Plus. The Government have consulted on a draft Civil Service Bill. We have the results of that consultation and will make a statement in due course; I am not in a position to make a statement this afternoon.

Several noble Lords, including the noble Lords, Lord Wallace of Saltaire and Lord Wright of Richmond, and the noble and learned Lord, Lord Howe of Aberavon,

24 May 2007 : Column 810

have suggested that the Government have relied too little on the policy advice and expertise of the diplomatic corps and the Civil Service. I hope that that has not been the case. The choice, as it has been put in the debate, is not either/or. It is absolutely right that Ministers should rely heavily on the advice that they receive from the Civil Service, as long as they are transparent and open about what alternative advice they see and make it public, as they do in inquiries such as those that have been conducted by the noble Lord, Lord Carter of Coles, or by the noble Lord, Lord Turner, into pensions. Not only is it not wrong to do that, it is wholly right, because one needs as wide a reach of policy advice as possible.

I am quite sure that the Government benefited hugely from consultative services provided by people such as KPMG. Indeed, the noble Baroness, Lady Noakes, used to help to provide such services when she was a consultant and not seconded to the Government. I was disappointed that she did not say whether the services provided by consultants such as KPMG were of value to the Government at the time. KPMG is one of the biggest providers of such services, from which we have benefited over the years, as have previous Governments. The Prime Minister summed up the Government's approach to this issue. As he put it:

I must say that that is my experience, too. No Minister would be wise not to rely on it completely, but they would also be wise to get advice from other sources.

My noble friend Lord Lipsey and other noble Lords suggested that the Government have operated sofa-style government. Indeed, the noble Lord, Lord Strathclyde, suggested that I was one of the greatest exponents of that. I am not sure whether that was a reference to my girth or to the way in which I formed policy. I am very glad to see noble Lords behind him protesting at the suggestion that that was the basis of the remark made. One should not confuse informality with rigorous processes not being used; they are used wherever necessary.

Accountability was another theme of many noble Lords who have taken part in the debate. The Government have introduced a transparency that did not exist under previous Administrations. We were the first to publish annual lists of gifts received and visits undertaken, and the Prime Minister is the first to appear before the Liaison Select Committee, which he does twice yearly. Best practice guidance on records management is published and constantly reviewed to ensure that it is relevant and up to date with international best practice. It is easy to point to changes, many of which, as the noble Lord, Lord Wallace of Saltaire, correctly said, point to a change in the process of government in the past 20 or 30 years. We, as a Government, have rightly sought to keep up with the changes in pressure and circumstance that apply to government.

The speech of the noble Lord, Lord Wallace of Saltaire, was very interesting, because he referred to the idea of government being conducted too fast,

24 May 2007 : Column 811

although those were not his exact words. That is plainly a reflection of the times in which we live, in which the media constantly drive Governments in particular ways and communication right across the world is so easy, with people having so much more ready access to information. I could not agree more with him that it would be very good indeed if one could slow down the process and the demands made on politicians, executives and civil servants throughout the world. The question is whether that is possible, given the landscape in which politicians and civil servants currently operate.

This connects closely with the points made by the noble Lord, Lord Norton of Louth, about our constitution. We do need to step back and give it period of thought. I suspect that it would be almost impossible, no matter how distinguished a body is set up, to come to holistic conclusions about what we want our constitution to do. Never in this country's history have we had a one-paragraph description of our constitution. The changes that have been made have always been made bit by bit. To go back to where I started, it is interesting that perhaps the most significant constitutional change of all was joining the EU. In the 20 or 30 years while we waited to join it, as we discussed, I suspect that the actual impact of that constitutional change was never foreseen. I am not inviting him to answer at this point, but I wonder whether the noble and learned Lord, Lord Howe of Aberavon, ever had any conception of what the effect of the European Communities Act 1972 would be as he drafted it.

I have not dealt with all the points that have been made. The noble Baroness, Lady Shephard of Northwold, made a very important speech on parliamentary accountability. I completely agree with her basic theme that parliamentary accountability is absolutely vital in ensuring that the public feel connected to the processes by which they are governed. I cannot tell her now how many quangos and non-quangos there are, but I will write to her with the answer. I completely agree with the noble Lord who said that this is a debate which it will pay to reread. It has been thoughtful and worthwhile, and we have learnt a lot from it.

2.28 pm

Lord Howe of Aberavon: My Lords, I thank all those colleagues who have been so kind about my initiation of this most interesting debate. I particularly thank my noble friend Lord Cope for not having discouraged me when the thought was in my mind. I am tempted to answer the question with which the noble and learned Lord the Lord Chancellor closed his speech by disclosing the fact that, when I sat in my room in the Law Officers' department as Solicitor-General, one of my legal secretaries came in with a mountainous bundle of paper. I said, "Good God, what on earth is that?". I got the reply, "Papers for the most important opinion you will ever write in your life"; so I was never under any illusions about the grandeur of the task.

One thought that occurs to me is that there has been very widespread agreement, save on the part of the noble and learned Lord himself, about the

24 May 2007 : Column 812

diagnosis that certain conditions require treatment, even if there is no agreement about the prescriptions that should be applied to them, save perhaps for agreement on the importance of having a robust and respected Foreign and Commonwealth Office.

I also agree with my noble friend Lord Norton of Louth and the noble and learned Lord the Lord Chancellor on the case for cartography and a closer study of our constitution in a more leisurely timescale. I am delighted that no one has been unwise enough to suggest that we should set about establishing a written constitution. I am sure that had the noble Lord, Lord Kerr of Kinlochard, been here, he would have leapt to his feet immediately and warned us against any such unwise endeavour, invoking the name of his colleague, President Giscard d'Estaing. I think that that is more than I ought to say, except perhaps that I am sad that the noble Lord, Lord Cunningham, is not with us. The skill with which he handled the Joint Committee on Conventions and resisted the temptation towards codification matches my instinct about a written constitution. Having said too much already, I beg leave to withdraw the Motion for Papers.

Motion for Papers, by leave, withdrawn.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

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