House of Lords Appointments Commission

Baroness Jay of Paddington Excerpts

Tuesday 5th January 2021 Lords Chamber

[Baroness Jay of Paddington (Lab) [V]]

My Lords, I do not normally support political conspiracy theories but the Prime Minister’s recent actions lend substance to the now widespread view that he is deliberately trying to undermine the credibility of this House and its institutions. I echo the noble Baroness, Lady Hayman, in asking what will be done to restore confidence. In particular, how will the Leader of the House, who, as the Minister knows, has a special responsibility to represent the whole House, ensure that our reputation and authority are protected at the centre of government?

[Lord True (Con)]

My Lords, I cannot answer for the Leader of the House; I answer on behalf of the Government. The Government that the noble Baroness had the honour of serving nominated 354 Members to your Lordships’ House. I think that getting too excited about my right honourable friend’s record so far is probably not appropriate.

Coalition Government: Constitution Committee Report

Baroness Jay of Paddington Excerpts

Tuesday 13th May 2014 Lords Chamber

Moved by

[Baroness Jay of Paddington]

That this House takes note of the Report of the Constitution Committee on Constitutional implications of coalition government (5th Report, HL Paper 130).

[Baroness Jay of Paddington (Lab)]

My Lords, I am particularly pleased to open the debate on this important report in this, the last week of my chairmanship of the Select Committee on the Constitution. The debate gives me the opportunity not only to thank all the witnesses who gave us valuable evidence in our wide-ranging inquiry, but also to express my overall gratitude to everyone associated with the committee during my four years as chairman. It has been a great privilege to work with the senior members of the House who have served on the committee. They have been very assiduous in their activities and made consistently distinguished contributions to our work. I am delighted that several of them are taking part in this debate. As members of the committee we have been extremely well supported, too, by our officials and by our legal and specialist advisers, all of whom have given us first-class assistance and advice. I would like to congratulate them on their work, as well as thank them.

This report is the result of one of the most significant inquiries the Constitution Committee has conducted in this Parliament, and as the Parliament enters its final year its conclusions and recommendations are particularly timely. Today, as noble Lords are well aware, we are constantly told by the party leaders that no one is contemplating the possibility of another hung Parliament in 2015: all are fighting for single-party victory. This may well be the ambition, but is it the reality? The committee naturally understands that, following another unclear election result, much will be determined by the politics of the day. However, we think there should be greater clarity about a number of constitutional questions before the end of this Parliament, and certainly before polling day in 2015. The opportunities for so-called “muddling through” in a traditional British way should be much reduced. Of course, the date of the next election is so certain because the Fixed-term Parliaments Act is now in operation. That Act has been the backdrop to the present coalition Government and to our inquiry, and I will return to its effect on the issues we examined later in my speech.

We looked at other changes in constitutional practice, which, for better or worse, may become permanent changes even when a future majority Government are in power. The committee’s intention is for our report to offer analysis and conclusions which should provide valuable guidance on what could become a more regular feature of British politics. As your Lordships appreciate, with an unwritten constitution many of the rules and conventions of Parliament and government are based on precedent. It is worth reminding the House, as the noble Lord, Lord Norton of Louth, reminded the committee, that this is the first peacetime coalition Administration since 1931, and the first ever coalition that has been the product of arithmetic following a general election. The last hung Parliament was in 1974 and that decade—the 1970s—experienced both minority Governments and arrangements on supply and confidence between parties in the House of Commons—arrangements which some have suggested sit more comfortably with our long-held conventions of Cabinet government.

The noble Lord, Lord Donoughue, with his personal experience of 1970s government, was one of our witnesses who supported this position and I am pleased that he is going to make a contribution to the debate in the gap. It remains to be seen if contemporary experience encourages today’s politicians to look at other solutions for government after an inconclusive election.

Our report covers four main areas. First, we look at the process of government formation after a hung election. Secondly, we examine proposals which aim to enhance the legitimacy of future coalition agreements. Thirdly, we consider how government and Parliament have and should operate under a coalition. Finally we address certain issues that we think will arise in the next few months, towards the end of the Parliament.

I begin with government formation. The House is aware that a succession of one-party Governments elected with large majorities has produced a modern expectation that Administrations change very quickly. The brutal, if effective, so-called “removal van in Downing Street” approach has meant that Prime Ministers are usually in their new place in less than 24 hours after the polls close. Evidently that was not the case in 2010, when negotiations took five days to conclude. We were told in evidence that all the parties felt under great pressure, particularly from the financial markets and the media, to conclude negotiations as quickly as possible. There was pressure on the Prime Minister to resign swiftly, with press headlines such as “The squatter in No. 10”, yet a period of five days for negotiation was by international standards very short. We concluded that although a Government should be formed as promptly as possible, five days should certainly not be seen as a template period for government formation after future hung elections. We were concerned by the lack of public and media understanding about the time that it takes to form a Government in these circumstances.

In particular, our witnesses told us that it was not only perfectly constitutionally proper for an incumbent Prime Minister to remain in office until the identity of a new Government was clear but that there is in some sense an expectation that he will do so. The Constitution Committee felt that—if only, frankly, to protect themselves as well as improve public understanding—the party leaders and managers should try to get these points across, particularly to the media, before the next election in May 2015.

One notable senior figure who thought ahead about the possibility of an inconclusive election was the then Cabinet Secretary, now the noble Lord, Lord O’Donnell, who I am very pleased to see contributing to today’s debate. Several of our witnesses paid tribute to his foresight in starting to plan for the outcome of the election. Importantly, arrangements were put in place for Civil Service support to be made available to any parties that were involved in post-election negotiations. In the event, the Conservative and Liberal negotiators took up logistical support only; they did not take up the offer of advice or briefings. On the other hand, we heard from the noble Lord, Lord McConnell, whose contribution I look forward to, about the experience in Scotland where the parties had fully taken up the offer of Civil Service support and found it very helpful indeed. Our report recommends that official advice should be automatically available after future hung Parliaments at Westminster. Clearly, it would be for the parties to decide what level of support they would take up but it should certainly not be up to the incumbent Prime Minister to grant this opportunity. We recommend that the current Government should commit in advance to make Civil Service support available, if necessary. I hope that the Minister will be able to give that commitment today.

Today’s coalition Government have often been questioned about their democratic legitimacy. No one voted for a coalition and it is argued that the coalition agreement of 2010 does not have the same status as the manifesto of a party that won a majority at the election. Some of our witnesses, albeit those from an academic rather than a political standpoint, suggested ways of closing a possible constitutional gap in legitimacy. One proposal was that after an election, the House of Commons should hold an investiture vote for a new Prime Minister; another that the Commons should vote formally to approve a coalition agreement. The committee did not accept these ideas. We thought that a prime ministerial investiture vote would risk making our system of government even more presidential and concluded that a traditional vote on the first Queen’s Speech is the appropriate test of whether the House of Commons has confidence in the Government and therefore approves a coalition programme.

I turn to those parts of the report which deal with the way in which the coalition Government have impacted on our constitutional understandings about how government and Parliament work in practice. Undoubtedly, the most dramatic departure from constitutional norms under this Government has been, as we heard, the frequent breaches of the convention of collective ministerial responsibility—a convention which is at the heart of Cabinet government. Noble Lords will recall that breaches have occurred on significant matters, such as the saga of the constituency boundary review where the Deputy Prime Minister unilaterally told Liberal Democrat parliamentarians to vote against a measure which, until then, had been seen as agreed government policy. The noble Lord, Lord Strathclyde, whose involvement in this debate I am also grateful for, said in his evidence to us that that was “outrageous”.

However, on the Conservative side we have also seen the remarkable event of Ministers being allowed to abstain on a vote on the Queen’s Speech and therefore in effect not being required to defend the Government’s agreed legislative programme. Other witnesses spoke of the debate on the report by Lord Justice Leveson on the press, when the Prime Minister and Deputy Prime Minister spoke successively from the same House of Commons Dispatch Box, but on different sides of the issue. Noble Lords will recall a similar situation in this House. There have been many more examples, yet in the current Parliament no Minister has resigned or been asked to resign because they have not been prepared to accept agreed government policy.

The committee considered whether this meant that collective responsibility should be explicitly set aside under a coalition Government. We also debated whether the principle should be generally downgraded in 21st-century politics, even when a majority Government are in power. We concluded that this would be a fundamental constitutional mistake. After all, the convention of collective responsibility is primarily important because it enables Parliament fully to hold the Government responsible for all their actions and policies. It means that Ministers cannot wriggle out of responsibility by saying that a certain decision was taken by another Minister and that they had nothing to do with it. Moreover, the committee agreed that the process of collective decision-making, which is an essential part of the convention, is more likely to lead to good government than making decisions in isolation.

I remind the House that when the coalition was formed, the agreement identified five issues on which the two parties would be permitted to express different views. Processes were set out whereby this could happen but, since then, divergence between the parties on other issues has clearly happened without any proper process being followed. I would say that the present row on education policy is probably a vivid example. The committee, of course, recognised that it is inevitable that two different parties will disagree on certain issues but we think that the convention is sufficiently important for collective responsibility to be set aside only as a last resort. We recommend that when one party wants to ignore the convention it should take the matter to Cabinet, so that it is the Cabinet as a whole that agrees to set aside the convention. This should happen only on specific issues, and preferably for a limited period. We think that a process along these lines should be set out in any future coalition agreement. Those who argue that the lack of collective responsibility we have seen in the present Parliament simply illustrates the unsuitability of coalition government in our system undoubtedly have a point. Certainly, given what has happened in the last four years there is a need to be more explicit and transparent about arrangements in future.

Turning to the effect of the coalition on your Lordships’ House, we found one perhaps unexpected side-effect: the relative lack of senior Ministers in this House. The noble Lord, Lord Strathclyde, told us he had hoped that the number of senior Ministers in the Lords would increase over the Parliament, but in fact the opposite has happened. He regretted that, and so do we. Perhaps the noble Lord will expand on this point in his speech this evening.

The committee examined how the Salisbury/Addison convention should apply during coalitions, and we conclude that a coalition agreement does not have the same mandate from the electorate as the manifesto of a majority party. Therefore, the Salisbury/Addison convention does not apply to measures in a coalition agreement. Again, however, the committee recognised the political reality that a practice has evolved whereby the Lords does not normally block government Bills, whether they are in a manifesto or not. We saw no reason to dilute this practice when there is a coalition but still thought it important to state that a coalition agreement does not constitutionally equal a manifesto commitment.

The last chapter of our report looks at the final months leading up to the general election. It is worth reminding ourselves that, in the next year, we will be dealing with two unprecedented factors. First, we know exactly when polling day will be and, secondly, we have a peacetime coalition Government who proclaim that they will stay together until 5 May next year. The committee’s immediate conclusion is that the certainty about dates should cancel the need for the often unsatisfactory period of frantic legislation at the end of a Parliament. The legislation in the forthcoming Queen’s Speech in June should be planned so that the so-called wash-up is washed out. I am glad that the noble Lord, Lord Strathclyde, as a previous Leader of the House, agreed with us. As I said, the prospect of two parties campaigning against each other while running the Government together is unprecedented and raises a number of political questions, which again the noble Lord, Lord McConnell, may shed light on from his experience in Scotland.

Once Parliament is dissolved and the formal campaign begins, the constitutional guidance on the purdah period is clear in the Cabinet manual. Our report emphasises that this guidance must be adhered to. When it comes to the different parties in government receiving advice from civil servants, we propose that a party with no Ministers in a particular department should be entitled to have contact with officials in that department in the same way as the Official Opposition would. This would prevent any party being disadvantaged in the run-up to the election.

As the committee’s report has demonstrated—although I have not covered every point—the constitutional effects of having a coalition Government have been profound. It should not of course be assumed that future hung Parliaments would automatically lead to a coalition Government; but, frankly, it would be naive for the political parties and others not to be taking that possibility into account.

I hope your Lordships appreciate that this inquiry by the Select Committee was extensive, and included evidence from a very wide range of authoritative witnesses. The report includes substantial analysis and practical recommendations on the basis both of our deliberations and the evidence we received. We published in mid-February and the report was designed to coincide with the conclusion of this parliamentary Session and the start of pre-election preparations. I am pleased that we have been able to debate it today, before Prorogation. However, I say to the Minister that I am extremely disappointed that the Government have failed to give any response to the report so far. It is a report of current interest and importance, yet the Government again have ignored the understood guidance, which asks for a response to Select Committee reports within two months of publication. Frankly, I regard that as not simply discourteous but, in this case, irresponsible.

During this Parliament the Constitution Committee has been disappointed by the Government in this way several times. I hope that the noble Lord, Lord Wallace, can offer detailed comment on our recommendations when he replies tonight, but I am afraid that whatever is said will not be a substitute for a proper, written, official response.

I do not want to conclude on that disagreeable note; so I end by renewing my thanks to all who contributed to the report and to those who will speak in the debate today. It has been a great privilege for me to serve as chairman of your Lordships’ Constitution Committee. It has also been enormously enjoyable, and I look forward to the debate. I beg to move.

--- Later in debate ---

[Lord Wallace of Saltaire (LD)]

My Lords, this has been a serious and worthwhile debate. I pay tribute to the noble Baroness, Lady Jay, both for this report and for her chairmanship of the committee. I have had the nervous privilege of appearing before it on one or two occasions, and I have always been asked extremely sharp questions.

I must apologise to the House that the noble Baroness has not yet received a governmental response. We had hoped that it would be ready before this debate. I will take back to the Cabinet Office the strong views expressed in this debate, and I will do my utmost to ensure that we have it available for the next chance that the House will have to debate constitutional issues, which I think will be the last day of the Queen’s Speech debate. I may not be able to deliver on that—I am conscious that in government at present the number of people who have to agree something of this significance is rather larger than it would be in a single-party Government; that is of course part of the problem of coalition government—but I will do my best.

Since the committee published its report in February, the Political and Constitutional Reform Committee in the other place and the Institute for Government have both published reports on the final year of a fixed-term Parliament, which I have also read, as no doubt have many others who have contributed to this debate. The reports also provide some very useful information—in the Institute for Government’s case, resting on extensive interviews with civil servants—about what we may need to think about over the next 12 months, and indeed over the next few months, in order to prepare for the final months of this fixed-term Parliament.

There have been some elements of knockabout politics in this debate and certainly some elements of nostalgia for a firm two-party system; I also felt that there was such nostalgia in a great deal of evidence given to the committee. The rose-tinted spectacles that the noble Lord, Lord Donoughue, has for that classic golden age of British government of 1974-79 are fascinating. Some of us have seen that interesting play, “This House”, about the experience of the 1974-79 Government, and that is not quite the quality of government that I remember. Some of us will have our doubts on minority government reinforced by that experience and our commitment to stable coalition strengthened.

Much of the evidence to the committee—which I read with fascination on Sunday—suggested that coalition will prove to have been exceptional; that single-party government is purer and clearer than coalition; that voters can give only one Government a mandate; and that if no party gets a majority of seats, it will be cleaner and somehow more democratic for the largest party on its own to form a minority Government. The noble Lord, Lord Norton of Louth, got a little close to saying that in describing his attitude to mandate. Perhaps off the Floor of the House he and I might discuss the difference between the Burkean view of parliamentary democracy and the populist view of popular democracy in which a general election is in effect a referendum to choose among the manifestos of the parties. I am for a parliamentary democracy; and in the British constitution as conventionally understood, it is Parliament that chooses the Government, and the Government rest on maintaining a majority in Parliament.

As the noble Lords, Lord Lang and Lord Norton, said in the evidence, ours is an adversarial constitution based on the assumption that politics has to be based on the alternation in power of two mass parties contesting for power. As a number of noble Lords have also said, our constitution now has to adjust to the disappearance of mass parties and the splintering of popular loyalties. The latest public opinion polls, which your Lordships have all read in the past two or three days, show that the largest party is at 33.6% of the electorate. The second largest is at 31%, with two other parties at over 10%. There are some eight to nine different parties now represented in the House of Commons, depending on how one counts the Northern Ireland MPs. I note that the Prime Minister had a reception last week for the unionist MPs for Northern Ireland, which suggests that the potential for future government is being thought about in all sorts of ways. It is more likely that the diversity of parties will increase in the next Parliament, rather than decrease.

I note, from a discussion within the Labour Party and in the Guardian, the 35% strategy, and that Labour might perhaps hope to win a majority of seats on a third of the vote, or possibly even to form a minority Government on its own on the basis of 32% or 33% of the vote. There is a question of legitimacy here. I noted with great amusement in the 9 April evidence that the Deputy Prime Minister gave to the Constitution Committee that the noble and learned Lord, Lord Irvine of Lairg, asked him what he thought was wrong with an appointed second Chamber. He said that there was a question of legitimacy, to which the noble and learned Lord said, “Only legitimacy?”. Legitimacy is a problem for government.

With this coalition Government we have had four years of remarkably stable government. I recall all the predictions from the Labour Benches in this House and the other place, to start with, that it would not last a year. It is highly likely at the next election that the people will fail or refuse to elect a majoritarian House of Commons for a single party. That will face us with the choice of changing the people, as the Leninists would like to say, or agreeing to adapt the constitution. I think that it is quite clear that we will have to adapt the constitution, and this report helpfully suggests a number of ways in which we should adapt.

From my experience of coalition Government, however, there are a number of coalition practices that ought to be practices of good government for any Government. We have returned to collective responsibility. We have had more formal meetings. Sometimes I feel that one of the problems with coalition Government is that it takes infinitely more time. There have to be more meetings—of our side and their side as well as of the two of us together. However, it means that government decisions are in most cases rather better considered. As the noble Lord, Lord McConnell, said, coalition strengthens the careful consideration of policies and limits unconsidered ministerial initiatives.

I also read in some of the evidence given to the committee a suggestion that coalition weakens the Prime Minister and that what we want is a really strong, effective, executive Prime Minister. After the experience of Tony Blair as Prime Minister, I think that there is quite a strong case for saying that having an Executive who are more effectively constrained by Parliament and collective discussion among different parties are good things for good government.

The noble Lord, Lord Norton, made some odd remarks about inexperienced Ministers. My recollection is that after 13 years of a Labour Government, virtually no incoming Ministers in the current Government—Conservative or Liberal Democrat—had prior ministerial experience. The question of whether there should have been more training—the sort of work the Institute for Government is now offering—is one that we will all have to consider further.

The rose-tinted spectacles also touched on what the final years of single-party government were like. I remember the Major Government in 1996-97, with all the remarks about the “bastards” doing their best to stab the Prime Minister in the back. We all have memories of the last year of the Brown Government in 2009-10 and of the last year of the minority Labour Government in 1978-79. All demonstrated that each of our established major parties is itself a coalition—and sometimes an unstable and ill-tempered coalition at that.

A range of issues was raised in this excellent report. First, on the formation of a Government, I think we can all strongly agree that it may well need more than five days, that we would not wish to follow continental practice by allowing it to extend too far and that an agreement that it would be 12 days before Parliament meets probably sends the right signal for government formation. I think we also agree that we have moved some way towards the concept of a caretaker Government. That is also a good thing in the circumstances. The question was raised of how much information and advice would be given by civil servants. I can assure noble Lords that Civil Service support for government formation negotiations will again be offered.

I strongly agree—and I trust that my colleagues in government in the response will also strongly agree—that the Queen’s Speech offers the occasion for a vote to accept a coalition agreement, although the noble Lord, Lord McConnell, was quite correct to say that it is a good thing if both parties are seen to accept it. My party had a special conference, and I have heard a number of Conservatives quietly say that they wish they had done something like that to tie their party into what they were doing. That would also perhaps be good practice.

A lot of time in this debate and in the report was spent on the issue of collective responsibility. I have to say that I was surprised to hear the noble Baroness, Lady Jay, refer to “frequent” breaches of the doctrine of collective responsibility in this Government. Indeed, the noble Lord, Lord Crickhowell—if I heard him correctly—referred to the “abandonment” of collective responsibility. The Cabinet Manual says that collective responsibility should rest upon collective decision-making:

“Before a decision is made, ministers are given the opportunity to debate the issue, with a view to reaching an agreed position”.

That is quite clear: collective responsibility comes from collective decision-making.

There have been occasions in previous Governments when Prime Ministers have taken decisions without consulting their colleagues—occasionally even the Chancellor of the Exchequer—and I would argue that, with a limited number of exceptions, collective responsibility in this Government works extremely well. The write-round has become much more the ritual procedure, partly because one has to make sure that Liberal Democrat and Conservative Ministers agree on things. It even reaches down to my lowly level. My stress level rose considerably last week when I received four 100-page reports with requests for my views on them by the close of play the following day because they had to go up to separate Secretaries of State. However, that is collective decision-making which ties us all in.

The noble Lord, Lord Strathclyde, and others remarked that a lot of this is to do with trust and a willingness to compromise, and we all know that in any Government there will be some with whom it is easy to work on a trustful basis and others with whom it will be difficult. I remember being told by officials that in the 1974 to 1979 Government there were papers marked, “Do not show to Tony Benn”. There was a lack of trust within the coalition that was the Labour Party. On the whole, in any Government one can write down the rules but one needs to have a degree of give and take and a willingness to make it work that keeps the Government together. From my own limited experience within this Government, I have to say that it works pretty well. There are, of course, exceptions from time to time—trust does break down—but we are still here, and we will be here until May next year.

I think that the noble Baroness, Lady Jay, said that breaches of collective responsibility demonstrate the unsuitability of coalitions to the British system of government—although perhaps I misheard her on that. It seems to me that collective responsibility has had to adapt to coalition, and has adapted fairly well.

[Baroness Jay of Paddington]

What I said was that it lent some credibility to those who argue that the system of coalition Government was not as suited as others to our system of government.

[Lord Wallace of Saltaire]

As it happens, I visited Hughenden two weeks ago and bought and have since read the biography of Disraeli by the noble Lord, Lord Hurd. I have now discovered the very odd conditions under which he made the great statement that coalitions are not suitable to the British constitution. I think that we all now agree that the British constitution can adapt to a stable coalition Government.

The noble Lord, Lord Strathclyde, and others raised the question of the Lords. Much of the question of what we do with the Salisbury/Addison convention was discussed in the Joint Committee on Conventions in 2007. I agree strongly with what the noble Lord said in his evidence, and has said again tonight, that the conventions have adapted since then. The Lords conventionally does not vote against the Second Reading of any Bill, but we are willing to amend it. The idea of the mandate and the manifesto Bill was much easier in the 1940s and 1950s, when parties got 48% or 50% of the vote. When giving evidence to that Joint Committee, I went back to that 1945 Labour manifesto, which has a page that lists a series of Bills that the Labour Party wished to take through. I compared that with the 1997 Labour manifesto, in which I could find no single firm commitment of that sort. We have all changed our manifestos in that way.

I have some sympathy with the remarks of the noble Lord, Lord Strathclyde, on the numbers of Ministers in the Lords and their degree of seniority—and I have, of course, intense sympathy with his remarks on those who are not paid, but perhaps we will save that for another time.

The question of fixed-term Parliaments has also been raised. The question of how we handle the final year of such a Parliament is clearly one that we all need to address fairly rapidly. Some interesting comments have been made about the opportunity that the final year provides to think longer term and to prepare. One area in which I have some responsibility is the national security strategy, which should be prepared in the fifth year of a Government for publication early in the new term of the new Government. That is something that we should think actively about for some other areas as well. For example, we could all consider long-term spending trends within government and how far we cope with the inexorable rise in health costs and pensions, which we all know are coming down to us. There is a great deal there to discuss further.

On access to civil servants, I confirm that there will be no change in the long-standing principles set out in the Cabinet Manual and that guidance on pre-election contacts will be issued to civil servants nearer the time when contacts are due to commence, at the beginning of October.

The noble Lord, Lord Strathclyde, raised the question of whether we have to have a wash-up. As we have just discovered at the end of this Session, one can never predict until the end of the Session whether we will have agreed all Bills by the time the Session comes to an end. We may hope that we will agree everything by then, but we will have to see what happens when it comes to it.

Lastly, we have not talked very much about the role of the Civil Service. The role of the Civil Service in holding a coalition together is vital. I hope that the Constitution Committee will return to the role of the Civil Service in further inquiries. From my own experience of the high quality of officials and their remarkable tact and patience in managing the coalition Government, I have to say that we have been extremely well served. I have found the work of the special advisers for both parties absolutely invaluable. The distinction between their role and that of officials is also something to which the Constitution Committee might return.

I again apologise to noble Lords that they have not yet had the Government’s response to the report. I thank the committee very much for this invaluable report. It is a subject which we all need to think about as we approach the next election. The opinion polls will no doubt go up and down in various directions, but after the election we will have to face the question of how we form the next Government, whatever shape that may be.

[Baroness Jay of Paddington]

My Lords, I thank the Minister for his response and my noble friend Lord Kennedy for his comments. I, of course, accept the Minister’s apology to the committee and to the House for the delay in the Government’s response. I hope very much that his aspiration that it will be available in time for the Queen’s Speech will be fulfilled.

I am very grateful to all those who have taken part in this debate. Even by the usual high standards of House of Lords debates on Constitution Committee reports it has been exceptional. It has been illuminated by a great deal of first-hand experience from a former Cabinet Secretary, a former Leader of the House and those who have taken part in the Liberal Democrat proceedings. As I say, that illuminated the debate.

We should all take note of what the noble Lord, Lord O’Donnell, said about looking to the future rather than the past. I have to say in parenthesis that, when we look at the past, my sympathies are not surprisingly with the view of the past held by the noble Lord, Lord Donoughue. However, taking up the specific point made by the noble Lord, Lord O’Donnell, I think that we will face what has been described as a challenging 12 months in the fifth year of this Parliament and this Government. Whether we can hold our breath and do some work on the retrospective scrutiny of committee inquiries I rather doubt, but it is an extremely interesting idea.

As I said at the beginning of the debate, this is a very significant report by the committee. The debate tonight has illustrated again what we knew when we held the inquiry—namely, that the line between constitutional debate and raw politics is very fine indeed. This debate has reflected the findings of our inquiry in that even the most neutral and objective taking of evidence and deliberation, which we certainly seek in the Constitution Committee, can be translated into raw and tough politics. I hope that this subject will be mentioned in the Queen’s Speech. I look forward to that.

Motion agreed.

Armed Force: Constitution Committee Report

Baroness Jay of Paddington Excerpts

Thursday 28th November 2013 Lords Chamber

Moved by

[Baroness Jay of Paddington]

To move that this House takes note of the Report of the Constitution Committee on Constitutional arrangements for the use of armed force (2nd Report, HL Paper 46).

[Baroness Jay of Paddington (Lab)]

My Lords, I am pleased to have the opportunity to open this debate on your Lordships’ Constitution Committee’s report on the use of armed force. Our report was published in July and, because of the war in Syria, was very timely.

Interestingly, the extensive public commentary on the report that took place at the time of its publication focused on our finding that the Government had until that moment been rather unclear about UK military action in Syria. That question was of course resolved by what has been rightly described as a historic vote in the House of Commons on 29 August. I will return to that vote and the events leading to it later in my remarks. The other important findings of our report remain extremely relevant to future strategic decisions.

Before moving on to the main body of the report, I place on record my warm thanks to all those who gave evidence to the committee and to its members for their diligent work on the inquiry. As always, I also warmly thank the committee’s clerk, our policy adviser and our special advisers on the law.

For some years now, there has been a debate about the role of Parliament in decisions about whether to use armed force overseas. In 2006, our predecessor Constitution Committee undertook a major inquiry into this area and produced a very substantial report. Since then, the position has continued to evolve, with various proposals put forward about how Parliament’s role could or should be formalised or, indeed, enhanced. Both the previous Labour Government and the coalition have considered whether to formalise Parliament’s role. It is also relevant that in recent years there have been significant changes in the nature of military intervention and the techniques of warfare. As a result of all these developments, both political and military, we decided to carry out a short inquiry into the constitutional arrangements for the use of armed force.

We very deliberately used the expression “use of armed force” although the 2006 report had spoken of “waging war”. The committee thought the term more accurately conveyed the different scenarios for intervention that may occur today. We thought it useful to examine developments in the Government’s internal processes for deciding on the use of force, as well as looking at how Parliament’s role may have changed.

Our report dealt first with the Government’s internal decision-making process. We were particularly interested in the significant innovation in 2010 when the coalition Government created the National Security Council. This is a Cabinet committee that meets weekly under the chairmanship of the Prime Minister. Its membership includes senior Cabinet Ministers and Armed Forces personnel. The National Security Council has a very wide remit, covering all aspects of foreign, defence, security and international development policy.

The committee explored the impact of the National Security Council in the political and military sphere. Several witnesses commented positively on how it has allowed a cross-departmental approach to develop in a way that reflects the very close connections between foreign policy, security and defence. Although not all the commentary on the council was complimentary, we were informed that its existence ensures that there is a regular and formal line of communication between Ministers, military officers and the heads of the intelligence services. The committee agreed that this was particularly valuable. It was clear that effective structures were essential when it came to decisions on deploying our forces overseas.

The evidence of Mr Jack Straw MP, who was Foreign Secretary from 2001 to 2006, was telling in relation to the invasion of Iraq. He said:

“I was uncomfortable … about the informality of decision-making that took place when Tony Blair was Prime Minister … I absolutely stand by the decisions we made on Iraq but, on this issue of legitimacy, they would have been regarded—then and today—as far more legitimate if there had been a much more formal process within the Government over making them”.

Of course, the committee recognised that informal discussions will always take place outside the Cabinet room and that smaller, ad hoc groups of Ministers and officials will no doubt make preliminary decisions. However, we re-emphasise the need for decisions on the use of armed force to take place in the full Cabinet, both to ensure that the principle of collective responsibility is engaged and to help to legitimise decisions to use force by the proper process.

We consider that, taken as a whole, the Government’s current formal internal arrangements seem appropriate. However, we were concerned that these processes may not be generally very well understood. For example, we looked at the Defence Council, which has been in existence since the 1960s and has formal legal authority for the conduct of defence in the UK. One might therefore think that the Defence Council is a significant factor in decisions on whether to deploy force. That is not the case. The evidence we heard was almost unanimous that its practical role in the UK’s defence arrangements is very limited. We were told that it meets infrequently and is not involved in the executive decision-making. Mr Andrew Robathan, who was then Minister for the Armed Forces, told us:

“Put it this way: I do not have an appointment for the Defence Council in my diary”.

Given the different players and the apparent lack of clarity even in Whitehall, we recommended that the Cabinet Manual should be amended to include a detailed description of the Government’s internal arrangements for advising and deciding on the use of armed force. I am very pleased to say that in their written response to our report, the Government undertook to include that information the next time a major revision of the Cabinet Manual is carried out. The last time that was done was of course some time ago. Could the Minister this evening give us an indication of when the next major revision is planned for?

I turn now to the committee’s consideration of Parliament’s role. Of course, the legal position on decisions to deploy force is not in dispute. Such decisions are made by Her Majesty’s Government, exercising the royal prerogative. Parliament has no legal role in authorising and approving the use of armed force overseas. However, that is not to say—as Members of the House will be very aware—that Parliament does not scrutinise such decisions closely. In recent years, the House of Commons has passed substantive Motions to approve the deployment of force in Iraq and Libya, and now to disapprove any intervention in Syria. Parliament has also scrutinised several other conflicts through regular debates, Questions and Select Committee inquiries. In 2013, it would be generally agreed that it is commonly accepted that the House of Commons should have the opportunity to debate decisions to use force before troops are committed, unless there is an emergency and such action would not be appropriate. The Government have stated that this is now a constitutional convention and it is accordingly recognised at the moment in the Cabinet Manual.

The debate in recent years has centred on whether this convention should be formalised in any way, so as to require precise parliamentary approval before force is deployed. Three possible options have been put forward for another role for Parliament: first, a detailed resolution of the House of Commons; secondly, primary legislation on this subject; and thirdly, continued reliance on a constitutional convention. In 2008, as part of its The Governance of Britain White Paper on constitutional reform, the previous Labour Government proposed that a detailed resolution should be passed by the House of Commons, requiring the Government to secure its approval for the deployment of troops overseas. It would be for the Prime Minister to decide when to seek approval. In emergency situations, retrospective approval would not be required. Nor would re-approval be required when the nature of the conflict changed. The proposed resolution would not have had the force of law, but would have meant that Parliament’s role was formally set out. Although a draft resolution was produced, no progress was made in implementing it before the 2010 election.

When the coalition Government came into office, they made no specific commitment to formalising Parliament’s role. However, during the debate on approving the intervention in Libya in March 2011, the Foreign Secretary, Mr Hague, said that the Government would,

“enshrine in law for the future the necessity of consulting Parliament on military action”.—[Official Report, Commons, 21/3/11; col. 799.]

At the time, that was understood to imply primary legislation, but since then we understand that there has been an internal debate within the Government as to the desirability or nature of any formalisation. Once again, no further action has been taken.

The Deputy Prime Minister, Mr Clegg, told us that that was still under review, and Mr Andrew Robathan told us that there was a division of opinion between Ministers in the coalition. Those in favour of a formal process argue that Parliament is the only body that can provide the necessary democratic legitimacy for a decision as important as this. It is argued that Parliament’s role should be enshrined so that no Government can bypass it. If Parliament’s role is formalised, all concerned will understand the process that must be followed before force is deployed and that following due process will itself increase the legitimacy of any action.

In addition to the democratic principle, some of our evidence from military experts and generals suggested that knowing that they had the clear backing of Parliament was very important to troops in the field. The noble and gallant Lord, Lord Guthrie of Craigiebank, who I am delighted to see will be speaking today, told us that,

“there were huge advantages if Parliament could be involved. When you visit people in the field on operations … the questions you were asked were, ‘is the country behind us? Is Parliament, the Government, behind us?’”.

On the other side of the current debate, none of those against formalising Parliament’s role sought to argue that Parliament should have no role. However, the committee heard several arguments against having either a formal parliamentary resolution or primary legislation. They were problems of definition, the risk of challenge in the courts, the risk of parliamentary engagement in operational decisions, the need to preserve political and military flexibility, and the argument that, given our convention, more formal procedures are just unnecessary.

Perhaps I can elaborate briefly on some of those arguments. First, there are the definitional problems. Formalisation would require Parliament’s role to be codified in a workable way. There would be major problems in what were called operational definitions. It will be necessary, for example, to specify what type of action would engage formal parliamentary involvement. For example, if the deployment of ground troops—boots on the ground—was the trigger, as was suggested in the 2008 proposed resolution, that would risk leaving out such interventions as the bombing of Kosovo in 1999 and imposing the no-fly zone over Libya in 2011.

A further decision would have to be made about the potential escalation of any activity and about at what point approval would have to be sought or might have to be renewed in different circumstances. The military might want a blanket approval at the outset, but parliamentarians might, for obvious reasons, want to keep their options open. A further dilemma would be whether there should be exemptions for emergency or secret deployments. If so, should Parliament’s approval be retrospectively sought? If so, what would happen if approval was declined? Having looked at such complexities, the committee was not surprised that Ministers still had difficulty in agreeing the best way forward.

Another objection to formalisation was the need to ensure strategic political and military flexibility. It was suggested, for example, that when the UK’s international obligations required the Government to commit to action with fellow NATO members, it would be detrimental to the Government’s position for there to be any doubt about whether they could commit. Any Government would also want to preserve flexibility to take defensive action or deploy force in an emergency. It is likely that any formalised process would leave a wide margin of discretion to the Prime Minister about when and where to seek Parliament’s approval, and there might in the end be so many exemptions that the formal process itself became only theoretical.

Additionally, there was the question of whether, if Parliament passed a formal law on authorisation, for example, the statute might be liable to be challenged in the courts and there might be judicial review. This was a new risk raised, which I thought was very interesting. Our witnesses were united in thinking that the appropriate forum for controlling and scrutinising such decisions is Parliament. In noting a recent judgment of the Supreme Court in Smith v Ministry of Defence, we were concerned that this demonstrated the court’s apparent willingness to become more involved in decisions relating to the battlefield. The committee shared the concerns expressed to us about the negative effect on the morale and operational independence of the Armed Forces when the courts scrutinised some operational decisions. In response, again, the Government have agreed with these comments and say that they will vigorously defend cases which call into question the principle of combat immunity, and will take further action as necessary.

To me, perhaps the final and most persuasive argument against greater parliamentary formality is that it is unnecessary. We understand that, in practice today, any Prime Minister seeking to deploy force overseas would politically be obliged to obtain the approval of Parliament, except in very exceptional circumstances.

The committee concluded that formalising Parliament’s role would involve significant difficulties and that such difficulties would outweigh any benefits. We concluded that much of the impetus for formalisation was to make a political statement rather than to correct deficiencies in the existing legal or military process. We therefore recommended that neither primary legislation nor a resolution should be introduced in an attempt to formalise Parliament’s role.

Finally, and without wishing to be unduly wise after the event, I will return briefly to the events of last summer in relation to Syria. Your Lordships will remember that at the time of the report in July, there was widespread and agitated discussion about whether the Government would arm opposition forces in Syria. It was only after sustained parliamentary pressure that Ministers gave an undertaking that the House of Commons would be given a vote before any decision to arm the so-called rebels was taken. As I said at the outset, it was the committee’s view that the Government’s intentions had perhaps been unhelpfully opaque. Very importantly, it was also unclear about how the Government might intend to involve Parliament should Her Majesty’s Armed Forces get further engaged in what seemed then, and seems now, an escalating conflict.

In late August 2013, the Government reacted to the apparent use of chemical weapons by President Assad’s forces in Syria by recalling Parliament. The proposal then was for the House of Commons to debate a government Motion, authorising the Government to take action in response to the attack. However, the business for 29 August stated that the proposal was in two stages and that before any direct British involvement, a further vote of the House of Commons would take place. The House will not need reminding that the Government’s Motion was defeated, and that in response the Prime Minister immediately stated that the Government would respect the wishes of the House of Commons. No further consideration of military intervention has, at least publicly, taken place.

These August events had major constitutional importance. First, the Government recalled Parliament before any decision to deploy force was taken. The Government respected the existing constitutional convention and, I would say, perhaps further entrenched it. Secondly, the Government immediately undertook to abide by the decision of the House of Commons, even though Ministers legally retain the power to commit the Armed Forces to action through the prerogative. Again, that can be seen as strengthening the convention. Thirdly, the fact that the Motion, if passed, would have involved a two- stage process of agreement by the Commons showed the benefits of keeping these matters flexible. It seems fairly clear that as a two-stage process of approval had not occurred in any previous conflict, it is unlikely that it would have been foreseen in any formalised resolution or legislation. In other words, the practical and contemporary experience of the intense debate on Syria underlined and demonstrated the correctness of our report’s conclusions and recommendations.

I look forward very much to the contributions this evening from speakers who, although they are somewhat small in number, are extremely distinguished, expert and authoritative on this very important subject. I beg to move.

--- Later in debate ---

[Baroness Jay of Paddington]

My Lords, I am grateful to the Minister for his very thoughtful and detailed response. Following the point just made by my noble friend Lord Kennedy of Southwark, it would be helpful to the Constitution Committee of your Lordships’ House if, in responding to the Commons committee, the Government could explicitly take note of and reflect on the points that have been made in this report, which I think will continue to be relevant.

Of course, everybody in the House understands that the Government are dealing with a rapidly evolving situation and, in the Minister’s words, are continuing the dialogue. I am sure that is something that we are all glad to hear.

I thank all noble Lords who have taken part in the debate. As I predicted, the speeches have demonstrated the knowledge and experience of all those who have spoken. I am particularly glad that the noble Lord, Lord King, as a former Secretary of State for Defence and member of war cabinets, found time to intervene. He was very helpful in making his observations about how rapidly things were changing, particularly how rapidly they have changed since he was making these decisions on the country’s behalf.

It was also very interesting that both the noble Lord, Lord King, and the noble and gallant Lord, Lord Guthrie of Craigiebank, referred to the role that the House of Lords can play in debates and decisions on these matters. I hope the Government will take note of that. I think everyone in the House would be convinced that the House of Lords would not be able to have a particular decision-making role in this. However, there is a necessity to use the experience here—which has been well described this evening and of which we are all very well aware—to spotlight the questions that arise in these different matters. That is very important.

Overall, frankly, the debate illustrated the complexities of the practical situations in which the Government and the country find themselves, and the difficulties of formulating any process more formally than the one we have at the moment. I know the committee will be particularly impressed to hear that it persuaded the noble Lord, Lord Hennessy, to change his mind. When I report back to it, that will be something of which it is particularly proud. The noble Baroness, Lady Falkner, illustrated the animated discussions that we had within the committee but she, as a good democrat, accepted the overall position of the committee in the report, which was—to summarise it in the phrase of the noble and gallant Lord, Lord Guthrie—that we could not be overly prescriptive. That reflects my continuing position.

Motion agreed.

Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

Baroness Jay of Paddington Excerpts

Tuesday 22nd October 2013 Lords Chamber

[Baroness Jay of Paddington (Lab)]

My Lords, I echo the noble Lord, Lord Wigley, in welcoming the noble Lord, Lord Horam, and congratulating him on his maiden speech. I rise to report briefly on the scrutiny of the Bill undertaken by your Lordships’ Select Committee on the Constitution, which I have the privilege of chairing. The House has already heard some powerful points from one member of the committee, the noble Lord, Lord Lang of Monkton, and a further speech will be made by the noble Lord, Lord Hart of Chilton. I hope that between us we will cover the major points that the committee has given in its report.

We reported on this Bill last Friday, 18 October, having discussed it at our meeting on 16 October. Somewhat unusually, we decided to publish our report rapidly and before Second Reading, rather than wait as we sometimes do to propose specific areas for amendment at the next stage. The committee felt that in this case the House should be made aware immediately of our significant concerns about the content and overall handling of the Bill.

The Constitution Committee accepts the view, widely promoted this afternoon, that there is general cross-party support for achieving greater transparency—a greater showing of the light, as it has been called—on lobbying, a matter that has been discussed for many years. We also welcome the amendments that have been made in another place to establish a clearer view of the position of Members of both Houses.

Overall, however, we are unsure that the Bill will achieve proper improvement in the immediate concerns of the general policy. We have specific doubts both about the clarity of the Bill’s provisions and about the potential effects of aspects of the Bill. Some of these might have been addressed if, as has been repeatedly said this afternoon, the Bill had not been introduced in what we describe in the report as “undue haste”. That obviously led to difficulties of scrutiny, with no pre-legislative scrutiny and an inadequate concern for time in the other place.

As your Lordships will be aware, over a number of years the Constitution Committee has published a series of reports—under different Governments, I point out—stressing the importance of effective scrutiny in legislation not only to enhance the reputation of Parliament but to improve the quality of legislation. Perhaps I might take two minutes to quote, as we do in our current report, from those previous reports. For example, in Parliament and the Legislative Process, we noted that,

“subjecting … measures to rigorous scrutiny is an essential responsibility of both Houses of Parliament if bad law is to be avoided … Parliament has a vital role in assuring itself that a bill is, in principle, desirable and that its provisions are fit for purpose”.

In another report, from the Session of 2010-12, The Process of Constitutional Change, we reiterated that,

“if Parliament cannot be seen to be scrutinising proposals with the thoroughness they deserve, public confidence in parliamentarians is likely to be further undermined”.

The committee feels that this is particularly important when dealing with matters that affect the constitution. We have emphasised that point in a succession of reports, which I have quoted from very briefly.

Here we come to the nub of the problem with the current Bill that the Constitution Committee is most concerned about. A Bill that directly affects the electorate’s ability to engage with the Government and to take part in political campaigning must challenge the fundamental common-law right to freedom of political expression. There could not be a clearer constitutional principle and, as the committee report states, given these factors it is essential that the process accords with the highest standards. However, the committee concludes that, given the lack of external consultation, the absence of a White Paper or a draft Bill and the hasty proceedings in another place, the handling of the Bill to date is a matter of significant concern.

To move to our scrutiny of the policy substance of the Bill, in Part 1 we share the generally expressed concern about the narrow scope of provisions on the work of lobbyists. Again, I quote from our report, which in turn mentions the report by our fellow committee in the other place:

“The Government’s lack of engagement with the industry is reflected in a poorly drafted and narrow definition which does not accurately reflect the work undertaken by lobbyists”.

As with many speakers this afternoon, though, it is of course Part 2 that has most concerned the committee as far as the policy is concerned. I remind your Lordships that the proposed amendments to the Political Parties, Elections and Referendums Act that tighten and extend various controls, including financial controls, are in Part 2. We have heard a series of vivid examples and explanations from various speakers today about the impact of these controls and extended financial regulations on the charity sector and on the voluntary sector in general. The potential limits on their campaigning activities have been described as “chilling” and as a chilling threat to their constitutional rights. Your Lordships’ Constitution Committee notes that the House must ensure that the Bill gives absolute and appropriate justification for interfering with that right. In the committee’s view, the Government had yet to offer such a convincing justification for extending the control on third parties and I suggest to the Minister—although obviously this is a personal view, as the committee has not met to consider today’s speeches—that that justification still has yet to be heard.

We conclude that your Lordships will wish to consider whether extended control is really necessary, given the particularly serious implications for a basic constitutional right. This is the question of achieving the balance that several noble Lords have referred to today. In consideration of the Bill, as the House has heard, the House has the advantage of several relevant parliamentary reports, including the very trenchant findings of the Political and Constitutional Reform Committee in the Commons, the report of the Joint Human Rights Committee, which my noble friend Lady Kennedy of The Shaws has referred to, and that of the Commons Committee on Standards. All these reports share a similar disquiet about the way in which the Bill has been handled and serious concerns about its content. I hope that the combined authority of those committee reports, together with your Lordships’ own Constitution Committee report, will give the Government pause and encourage Ministers to listen very carefully to the debates in this House.

Accountability of Civil Servants: Constitution Committee Report

Baroness Jay of Paddington Excerpts

Thursday 7th February 2013 Lords Chamber

Moved By

[Baroness Jay of Paddington]

That this House takes note of the Report of the Constitution Committee on The Accountability of Civil Servants (6th Report, HL Paper 61).

[Baroness Jay of Paddington]

My Lords, I welcome the opportunity to open this debate on behalf of your Lordships’ Constitution Committee. I am glad that we are able to debate our report reasonably soon after its publication as this is undoubtedly a fast-moving area. Since our report was published last autumn, the fallout from the cancellation of the west coast main line contract has continued. The Government have begun implementing some of the proposals of The Civil Service Reform Plan which was published in June last year, and other proposals remain the subject of considerable debate—often played out through briefings to the newspapers, which have usually given a rather negative view of the Civil Service.

The committee conducted its inquiry over several months last year and I am very grateful to the large number of distinguished witnesses, some of whom I am pleased to say are speaking this afternoon, who gave written and oral evidence. As always, the Committee was extremely well served by its official staff and by its legal advisers, Professor Richard Rawlings and Professor Adam Tomkins, who acted as special advisers for this inquiry. I thank them and other members of the committee for their hard work on this report.

As I said, the report was published in the autumn, in mid November, and I am very disappointed that only yesterday evening I received the Government’s formal response. Your Lordships will know that it is established practice that the Government respond to reports of this kind within two months of publication. In this case, that would have been by 20 January. I regard it as discourteous both to the committee and to the House that we have heard so very late from the Cabinet Office. This must mean that the committee has obviously been unable to consider the Government’s response and it is therefore impossible for me to respond to the Government’s reply, particularly on some of the points on which the committee and the Government seem to disagree. I look forward to the Minister giving us an extensive explanation of the Government’s position when he replies to the debate.

Coming to the substance of our report I should first make clear that this was not a general inquiry into the present state of the Civil Service. Our focus was specifically on accountability. We wanted to examine how well civil servants who play very significant permanent roles in our system of government are held to account. The increase in the size, functions and complexity of the state makes it important, of course, that all those who carry out responsible work on behalf of the public are properly accountable. One of the developing ways in which civil servants are held directly to account is through parliamentary Select Committees in both Houses, perhaps most prominently by the House of Commons Public Accounts Committee which, as the House will be aware, has been recently involved in controversial dealings with senior officials.

The Constitution Committee started from the simple but indispensable point of principle: Ministers are responsible to Parliament for all of their department’s business. This means that, in addition to being responsible for the policies they devise, Ministers are also responsible for the actions and inactions of their civil servants, and for the administration of their departments. Accountability must extend to cover those arm’s-length bodies which report to a department and the committee is also clear that Ministers are personally responsible for their political special advisers, including ensuring that those advisers follow their own code of conduct. In our report, the committee concludes that this overall responsibility must be essential if Parliament is to be able properly to hold the Government to account. Your Lordships may remember that the Constitution Committee affirmed this principle very strongly during the passage of Health and Social Care Act during the previous Session. It insisted that the Secretary of State for Health must remain fully responsible for the health service, regardless of the changes that were proposed in the Bill. Section 1 of the Bill was amended in your Lordships’ House so that that the principle is now in statute.

The corollary of ministerial responsibility to Parliament is that civil servants must be fully accountable to Ministers. It is in this area that there has been much recent debate. Relations between the Civil Service and Ministers are said to be at an all-time low. The Prime Minister has referred to “bureaucrats in government departments” as the “enemies of enterprise”. The Minister for the Cabinet Office, Francis Maude MP, has said that civil servants need to focus more on Ministers’ priorities. Blame for errors in handling the west coast main line bidding process was pinned firmly on civil servants in the Department for Transport, resulting in three of them being suspended. Recently, one former Minister, Mr Nick Herbert, said that he had been better supported in opposition than by the Civil Service in government.

It is perhaps not surprising, therefore, that The Civil Service Reform Plan contains proposals to alter the relationship between civil servants and Ministers. One of its aims is to improve civil servants’ accountability. Perhaps the most high profile of these proposals is to give Ministers a greater role in the appointment of their departmental Permanent Secretaries. As noble Lords will be aware, particularly those who have themselves been Ministers, Ministers are already closely involved in the process as they agree the job description and the composition of the selection panel; they can meet the shortlisted candidates and then provide their views on the candidates and the selection panel. The Prime Minister retains a power of veto over the candidate proposed by the Civil Service Commission—a veto that he apparently and reportedly exercised late last year in respect of the nominated candidate for Permanent Secretary of the Department of Energy and Climate Change. However, what Ministers do not do—and have not done up to now—is decide from a list of names put forward by a selection panel who should hold the top job.

The Civil Service reform plan indicated the Government’s broad intention to strengthen Ministers’ roles in the recruitment process for Permanent Secretaries. It did not specify how, but said that the Government would consult with the Civil Service Commission. However, since then, both the Prime Minister and the Minister for the Cabinet Office, Mr Maude, have made it clear that they prefer Ministers to be given the power to select from a shortlist of names when recruiting a new Permanent Secretary. Mr Maude has indeed indicated that he has not ruled out legislating to achieve this. The Government argue that such a change is important for ensuring that the Civil Service is working to the Government’s priorities. If Ministers are fully accountable for all the actions and omissions of their civil servants, the argument goes, Ministers should be given the choice over the principal civil servants who carry out their decisions. Interestingly, in evidence to us, the Government’s proposal was also supported by, among others, the right honourable David Blunkett MP, a senior Cabinet Minister in the previous Labour Government.

On the other hand, others who gave evidence to us, including the Civil Service Commission, objected to giving Ministers the final say over the choice of Permanent Secretaries. They argue that it will lead to Permanent Secretaries being seen as the creatures of Ministers and will undermine Civil Service impartiality and the principle of appointment on merit. The temptations of cronyism and favouritism might, it was thought, prove too great for some Ministers. Others questioned what will happen in departments where Ministers are moved frequently. Will each change of Secretary of State result in a new Permanent Secretary? If so, the word “permanent” in the job title rings somewhat hollow.

The committee heard evidence suggesting that the position may not be as stark and as black and white as is sometimes suggested. We heard, for example, from the former Labour Home Secretary, Charles Clarke, that when a relationship between a Secretary of State and a Permanent Secretary breaks down the official may just be quietly moved on. Another Conservative ex-Cabinet member, the noble Lord, Lord Fowler, said that Ministers are often already given a strong informal say in the appointment process, including expressing a preference.

One thing we should remember is that it was only three years ago that Parliament passed the Constitutional Reform and Governance Act which enshrines in law the attributes of the Civil Service—integrity, honesty, objectivity and impartiality. The principle of appointment on merit clearly flows from these attributes. However, the Constitution Committee concluded that however the Government wish to modify the existing process for appointing Permanent Secretaries, they must continue to conform fully with those constitutional principles. We thought it would be odd if, having waited 160 years for the Northcote-Trevelyan principles and proposals to be put into statute, they were discarded so quickly.

We concluded that the same principles ought to apply to the Government’s proposal for so-called direct appointments. The Civil Service reform plan proposes that where a department lacks a particular expertise, a Minister should be able to make direct appointments into specific, fixed-term posts. On this occasion we heard concerns that such appointments might be used to create a new class of special advisers. We concluded that Ministers should be limited to requesting the category of expertise that they require. Permanent Secretaries should continue to make the individual appointments subject to the approval of the Civil Service Commission.

One member of the Constitution Committee, the noble Lord, Lord Powell of Bayswater, who of course has had a long and distinguished career in Whitehall, has expressed this succinctly. Unfortunately, he is unable to speak today. He has said that bringing in expertise from outside for specific jobs or to carry through new initiatives is eminently desirable—Ministers are fully entitled to ask for that. He believes, however, that they should ask for expertise—for example, “Go out and get me a really good tax specialist”—and that they should not ask for individuals whom they just happen to know. Least of all, he believes, we do not need a new breed of callow special advisers—seasoned experts are required for these sorts of jobs.

None the less, in the area of long-term project management, the Constitution Committee was concerned about the Civil Service’s record of delivery. The list of big government projects which have overrun and cost vastly more than was budgeted is depressing. It is not easy to identify solutions to these difficulties; one common problem seems to be the high turnover of officials working on such projects. High staff turnover is a widespread criticism of the modern Civil Service. We recommend that there should be a presumption that a single, senior civil servant will lead major projects from start to finish. This should improve the ability to hold the Executive, and specifically one official in the Executive, a civil servant, to account for such projects.

The Constitution Committee also examined not merely the accountability of civil servants to Ministers but also the direct accountability of civil servants to Parliament. As the House knows, it is now commonplace for civil servants to appear before Select Committees, sometimes alongside Ministers and sometimes on their own. Such direct accountability is undoubtedly welcome. Select Committees benefit considerably from being able to hear civil servants in this way. Constitutionally and importantly, however, the appearance of civil servants before Select Committees is a supplement to Ministers’ responsibility to Parliament, not a replacement for it. Only Ministers can participate fully in the proceedings of Parliament—answering Parliamentary Questions and responding to debates. For this reason Parliament cannot hold a civil servant properly to account in the place of a Minister.

The Cabinet Office has developed guidance for civil servants who give evidence to Select Committees. The guidance is widely known as the Osmotherly rules—called after Sir Edward Osmotherly the marvellously Trollopeanly named official who originally devised them. The rules offer guidance on what civil servants should and should not say to committees and when it is appropriate for a Minister to appear rather than officials. The committee’s view is that the Osmotherly rules are simply Civil Service guidance and nothing more. They should not be given any greater political or constitutional weight. The Osmotherly rules have not been endorsed by Parliament and do not bind Select Committees in any way.

We recommend that any future revisions of the rules should be published in draft to enable Parliament and its Select Committees to scrutinise proposed changes. In his evidence to us the Minister, Mr Maude, indicated that he would support such parliamentary scrutiny— perhaps the noble Lord, Lord Wallace, can comment on this proposal in his reply.

Although civil servants frequently give evidence to committees, as I have said, they do so on behalf of their Ministers. For this reason, committees usually accept whichever official or officials a department recommends are best placed to give evidence on any given topic. Sometimes, however, committees will want to question a named civil servant—for example, the official in charge of a particular project or policy. The Osmotherly rules include a “presumption” that Ministers will meet such a request. We think this should be strengthened so that a call for a specific individual should be refused only in exceptional cases.

Accountability would also be strengthened if committees were able to question someone who had left the Civil Service or moved to another post. This practice should apply not just to former accounting officers—as suggested in the Government’s Civil Service reform plan—but to other former senior civil servants. Sometimes it is only by taking evidence from former office holders that a committee can get to the bottom of an issue and we do not think the Osmotherly rules should stand in the way of this practice.

As your Lordships are aware, successive Governments have maintained the principle that advice given by civil servants to Ministers should not be disclosed to Select Committees or to anyone else. This of course maintains the principle of ministerial responsibility—civil servants giving full and candid advice but Ministers taking the decisions. The committee did not seek to undo this principle, but thought that the practice set out in the Osmotherly rules needed revision. For example, under the Freedom of Information Act 2000 it is possible to access Civil Service advice if certain conditions are met. The Osmotherly rules suggest that in no circumstances would such advice be disclosed to a committee. Therefore, if the rules are followed strictly, Select Committees may paradoxically have weaker rights of access than someone submitting a freedom of information request. This seemed to us obviously unsatisfactory and so we recommend that on rare occasions when committees need sight of such advice, they should be able to request it.

Our final recommendation concerns situations where the evidence taken by a committee points to an individual civil servant being at fault. The Osmotherly rules suggest that in such circumstances it is for the Minister to examine the matter and take any further action. We were conscious that Select Committees are not disciplinary tribunals. However, if evidence leads a committee to conclude that a particular civil servant has been at fault, we think the committee should be able to express personal criticism and, in extreme cases, suggest that the department concerned considers disciplinary procedures.

In summary, the Constitution Committee’s report underlines the pre-eminence of ministerial accountability to Parliament and civil servants’ accountability to Ministers. We make clear that any plans to reform the Civil Service must not undermine the accepted principles of accountability or Civil Service impartiality. The report also concludes that parliamentary Select Committees should have greater access to individual civil servants and that the informal rules governing their appearances before committees should be revised and scrutinised by Parliament. I look forward to what I know will be an interesting and authoritative debate. I beg to move.

--- Later in debate ---

[Baroness Jay of Paddington]

My Lords, I am grateful to the Minister for his comprehensive and thoughtful reply to the debate and for giving us a somewhat reassuring update on both the atmosphere in Whitehall and the state of the Government’s Civil Service reform plan. I am also very grateful for the erudition and experience demonstrated by every speaker who has taken part in the debate this afternoon. We have heard a wide range of views from relevant, authoritative perspectives and I am pleased that those have, on the whole, generally welcomed the Constitution Committee report and, indeed, shared some of the concerns which we expressed in that report.

Among a very wide variety of fascinating historical quotations that we heard all around the House this afternoon, the noble Lord, Lord Wright of Richmond, very kindly quoted the important speech of my father Lord Callaghan. As a dutiful daughter, I am obviously duty-bound to agree with every word of that speech. However, very seriously, I urge the Government to reflect on the quotation highlighted by the noble Lord, Lord Wright, and on the opinions of a contemporary kind which have been expressed this afternoon. I think the House is agreed that the government of this country will lose very much more than it gains if the fundamental principles underlying our Civil Service are challenged, either today or in the future.

Motion agreed.

Electoral Registration and Administration Bill

Baroness Jay of Paddington Excerpts

Monday 29th October 2012 Lords Chamber

[Lord Rennard]

That is exactly my point. I am unaware of any consultation on this issue. I have asked a number of times by correspondence what consultation there may have been with the Scottish Parliament, the Welsh Assembly or the LGA, which is responsible for local elections. It seems that these bodies are unaware that, through the Bill, there will be significant changes to the electoral arrangements for those elections in May 2016. I believe that they should be aware of them and their view should be part of our consideration of this Bill.

As I said, the principle of IER is not really in dispute between the parties. All the parties agree the principle of it, and they agree that a household-based system is insecure, inadequate and leads to inaccuracy. However, the question is how you get from that system to a more secure and more rational alternative without losing from the register lots of people who are legitimately entitled to vote.

In that objective, the noble and learned Lord, Lord Falconer of Thoroton, the noble Lord, Lord Wallace of Saltaire, and I are all agreed, but the question is: what if we have not achieved our objective by 1 December 2015? I am convinced—and the Electoral Commission warns us of this—that there is a real possibility that we will not have achieved our objectives by 1 December 2015. Furthermore, I am convinced that the possibility of failure will be lessened if we do not in this Bill sign up to full implementation by then, irrespective of what progress is actually made on implementation in the next few years. In other words, a strong signal will be sent to government if they have to make this system work before it is fully implemented. I think that it would be invidious to expect the Electoral Commission, on its own, to push the “go” button on the final parts of the transition to IER. Therefore, to help to ensure that the stated objectives are met, I would prefer to see provision made to permit Parliament effectively to extend the carryover of voters from existing registers for a further period if, in the judgment of Parliament, the register is not in a sufficiently complete state on the basis of individual registrations alone. On that basis, we do not support Amendment 59, as we believe that there is a better, alternative approach, which we will set out when we reach a later group.

Turning briefly to Amendments 1 and 36, I should like to see the Electoral Commission reporting in this way, as it would inform our future debates. However, these reports themselves would be of little value if there were no possibility of Parliament providing for carryover to continue beyond 2015. Likewise, the capacity of Ministers to give guidance to electoral registration officers is of little value if the law says that electors on existing registers in their area should be removed from future registers, even if Parliament is not satisfied that we have been able to get a proper alternative registration system in place.

In due course, I hope that all concerned will accept that Parliament should have the final say on whether we are succeeding sufficiently well in our aims of having an accurate and complete electoral register before we exclude unnecessarily from the voting rolls perhaps several million people who will still be legitimately entitled to vote. We will not be able to make that judgment until we see how the new system is working.

[Baroness Jay of Paddington]

My Lords, like the noble Lord, Lord Forsyth, I regret that I was unable to take part on Second Reading, but since that debate the Constitution Committee, which I have the privilege of chairing, has issued its own report on the Bill. The report very much echoes some of the points that have just been made by the noble Lord, Lord Rennard. Overall, the Constitution Committee sought to impress on today’s Committee that the Government need to do everything possible to ensure that the completeness of the electoral register is matched by its accuracy. Concerns were raised—I know from reading the Second Reading debate—about the way in which the impact might fall heaviest on areas of urban population where, for example, many people in private rented accommodation—ethnic minority people, the young, and so on—might be unnecessarily excluded in the pursuit of the completeness, which might not necessarily reflect the accuracy and vice versa of the new register.

Although I take the point made by the noble and learned Lord, Lord Falconer of Thoroton, that there may have been special concerns and reasons in Northern Ireland, it is worth noting that the accuracy of the register fell by nearly 10% when individual registration was first introduced. The other major point that applies to this group of amendments—again I am echoing the noble Lord, Lord Rennard, and the concerns raised by the Constitution Committee—was about the necessity not to express many of these important concerns in guidance. The committee was concerned that there should be much greater parliamentary oversight of the introduction of the new register and that these matters should be put in regulations. We felt that for the Secretary of State to be able to determine requirements for exercising the right to vote without effective parliamentary oversight would indeed be constitutionally improper.

[Lord Maxton]

My Lords, I begin by apologising to the Committee because like the noble Lord, Lord Forsyth, and the noble Baroness, Lady Jay, I did not speak on Second Reading. I had a specific reason for not doing so. I was on the list to speak but unfortunately I was in the Information Committee. I thought that the business would go on longer but I suddenly realised that I could not make it into the Chamber in time to hear the beginning of the Minister’s opening remarks. I was therefore asked not to speak on Second Reading. I apologise to the Committee for making that mistake. The danger is that now I will fall into the trap of making the Second Reading speech that I would have made.

The noble Lord, Lord Rennard, in particular, roused me to my feet as I have one simple point to make. The Bill is designed to stop fraud and ought to be designed to encourage people to vote, and there is one simple way to deal with that. Unfortunately this House and the other place both voted to get rid of that simple way of dealing with this matter, which was the introduction of an identity card—a general register of all people. It would have been a compulsory identity card for everyone. It would have ensured that everyone was on the central register and we would not be in this position. The noble Lord, Lord Rennard, led the campaign, as much as anybody did, against ID cards, which was a major error on his part. By the way, the technology on ID cards, or smart cards, has moved on extensively even since we abolished the proposal less than two years ago. Now we could have a smart card that would ensure that people were on a central register and the register itself would divide and set up online registers for the whole of the country. Each constituency would have a register, not completed by a registration officer or by individual registration but automatically: by pressing a series of buttons on a computer it would come up with the right answers. Each individual would be able to vote only by producing an ID card. This would stop a great deal of fraud, provide a workable system and, I hope very rapidly, we would move to voting electronically and using the ID card to register our votes.

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[Lord Wallace of Saltaire]

To be absolutely sure that I am entirely consistent with my namesake, I will write to the noble Lord when I have checked as thoroughly as I can to ensure that I am entirely accurate.

[Baroness Jay of Paddington]

To follow up the original question of the noble Lord, Lord Forsyth, which is a question of constitutional relevance, however the register is achieved—whether the attainers are dealt with from one particular date or another—is not the point the inconsistency between that referendum franchise and the one then applicable for Westminster elections and how will that be dealt with?

[Lord Wallace of Saltaire]

In allowing 16 year-olds to vote in a Scottish referendum, we are making an exception. That is evident; that is part of what has now happened. We have a register which has various people on it with different circumstances. There are those EU citizens who are entitled to vote in local and European elections but not national elections; there are Members of this House, who are entitled to vote, similarly, in European and local but not in national elections. So there are already some variations between categories on the register. I will check as thoroughly as I can on this to ensure that I am entirely accurate on a point which, I fully understand, is important.

Perhaps I may now turn to the three important amendments. The issue at stake for all of us is how confident we are that we will manage the two-year transition and what we do when we reach the end to ensure that we have gone all the way through the transition. The reason for having a two-year transition is precisely to ensure that we are successful as we come to the outcome. The Electoral Commission will be following that very closely. We will be reporting back to the House on how the new system operates, so we are confident that by the autumn of 2015—with, as the noble Lord, Lord Wills, correctly pointed out, a different Government, or certainly a new Government, in place—we will be able to make a full transition.

Amendment 1 asks for guidance to be maintained for registration officers beyond the five-year period. Again, we are into questions about central direction and local autonomy for registration officers. Having spoken to a number of electoral administrators, I have considerable sympathy for the strains under which they work and the efforts which they put in to maintain as complete and accurate a register as possible. We will come back to the issue of how electoral registration is maintained on our third day in Committee.

We will of course continue to monitor and assess the effectiveness of the system during the five-year period, but we are confident that at the end of it the transition will have been fully taken through and we will have achieved a relatively stable system. When I say “stable system”, I say to the noble Lord, Lord Maxton, that I am also confident that we will have moved to a considerable extent towards an online system. I recall telling the House some months ago that the DWP expects that the number of its customers who interact with it online will have moved from some 20% to some 80% over the next 10 to 15 years, so we are in a system in which we will be moving from paper and letters to online interaction. I am also confident that we will find that data matching and data checking will become more and more constructive and accurate as a means of checking whether someone who registers is precisely who she says she is.

Constitutional Change: Constitution Committee Report

Baroness Jay of Paddington Excerpts

Wednesday 7th December 2011 Grand Committee

Moved By

[Baroness Jay of Paddington]

That the Grand Committee do consider the Report of the Constitution Committee on The Process of Constitutional Change (15th Report, HL Paper 177).

[Baroness Jay of Paddington]

My Lords, I am very pleased to open this debate on the Constitution Committee’s report, The Process of Constitutional Change, which we published last July. The purpose of the inquiry was to explore the way in which changes to the UK constitution are brought about, and whether we could recommend improvements. The timing of the inquiry was prompted by the coalition Government’s action in introducing several substantial constitutional Bills in their first year in office. As noble Lords will be aware, the Government have also announced further plans for constitutional change, notably reform of your Lordships’ House.

Our report was based on written submissions that we received and on oral evidence from a number of eminent experts. These experts were mostly academics but we also heard from the Deputy Prime Minister, Nick Clegg, the author of many of the coalition proposals, and from two former MPs, Tony Wright and David Howarth, who have wide knowledge and experience in this field. I should like to place on record my thanks to all who gave evidence and, in particular, to the committee’s two legal advisers, Professor Adam Tompkins and Professor Rick Rawlings, who acted as specialist advisers for this inquiry, and to our Clerk, Emily Baldock.

The committee’s overall recommendation is that, in contrast with existing practice, the United Kingdom needs to adopt a clear and consistent process to make Governments accountable for the constitutional changes that they introduce. As your Lordships will appreciate, the process of constitutional change matters because the constitution, even when it is unwritten, is the foundation on which our laws and government are built. Currently there is little to prevent Governments with a majority in the other place changing the UK’s constitutional arrangements as they please. The constitution is therefore vulnerable to the political agendas of successive Governments but any Government should be subject to the constitution, not the other way around.

In the Select Committee’s opinion, all proposed changes should be tested against an agreed and rigorous process, which would prevent Ministers picking and choosing which processes to apply in different political circumstances. We argue that constitutional legislation is qualitatively different from other legislation and should therefore be treated differently.

It should be noted that, although our inquiry was, as I said, prompted by our response to several contemporary Bills, our criticisms of existing process are certainly not exclusively directed at the current Government. The record of the past will show that the Constitution Committee has been concerned about constitutional legislation since it was first established a decade ago. As the Grand Committee will remember, the Constitution Committee was often robustly critical of changes made by the previous Administration. I believe that the noble Lord, Lord Norton of Louth, who is a very long-serving member of the committee, will speak about its persistent and consistent efforts in this direction since 2001.

This year, as a first step, we set about trying to define those pieces of legislation that could legitimately be called constitutional and should therefore be subject to a special process. However, we were not tempted to consider that this could be done in a watertight way only if the UK moved towards a written constitution. Equally, we did not accept the suggestions, which came from several academic witnesses, that Parliament should outsource constitutional matters to an independent commission, which could then decide whether any constitutional proposals were acceptable.

However, the committee found it useful to try to identify positively those areas where any change was properly described as both constitutional and substantial. Professor Sir John Baker of the University of Cambridge offered us a list, which the committee found useful. The list included: any alteration to structure and composition of Parliament; any alteration to powers of Parliament or any transfer of power, as by devolution or international treaty, which would in practice be difficult to reverse; any alternation to the succession to the Crown, or the functions of the monarch; any substantial alteration to the balance of power between Parliament and government; any substantial alteration to the balance of power between central government and local authorities; and any substantial alteration to the liberties of the subject, including the right to habeas corpus and trial by jury.

Clearly, this is not an exhaustive list, but the Committee thought that it certainly included those significant constitutional matters, where a clear and consistent process should be adopted by all Governments. In essence, our main recommendation was quite limited. We asked that the Government, before introducing such a new Bill into Parliament, should set out in a Written Ministerial Statement whether that Bill provides for significant constitutional change and, if so, whether it has been subject to certain prelegislative processes, both of consultation and prelegislative scrutiny.

In our view, any constitutional Bill should be preceded first by some form of public engagement. There should be rigorous scrutiny in Cabinet committees, particularly considering the impact of proposals on the existing constitutional arrangements, which in our opinion are sometimes not taken into consideration. The Government should publish both Green and White Papers to be followed by a formal public consultation and prelegislative scrutiny. At the end of such a process, there is no doubt that there may well still be disagreement with the policy of a particular Bill, and we did not recommend, as has sometimes been suggested, that a consensus must be reached before a Bill could be introduced. But at least, if the process that we described had been followed, everyone would have been afforded an opportunity to have their say and genuinely influence the outcome. The only mandatory element of these proposals would be the production of the Written Ministerial Statement.

The Government’s response to our report was published in September and, in parliamentary language, I have to describe it as disappointing. The Government do not appear to accept that constitutional Bills can be readily identified and should have particular treatment. The Committee thought that even on the basis that “you know one when you see one”, it is perfectly possible to single out a constitutional Bill for a special process. The Government’s response to the main recommendation was that they,

“will consider whether to accept the principle of it”.

This afternoon, I urge the Minister to go further than consideration and accept that principle and thus agree to introduce Written Ministerial Statements, one hopes from the beginning of the next Session. This in itself would go a long way to remove the practice of ad hoc decision-making in this fundamental area.

The recommendations that we made for a specific prelegislative process were queried in the Government’s response and are obviously the subject for debate and refinement. The question of what the committee’s report calls public engagement is always difficult in a representative democracy. In this instance, we use the phrase to cover forms of engagement that take place at an early stage in policy-making. We distinguished it from referendums on specific policy questions and from public consultation on individual detailed proposals. We heard, for example, about a fascinating model for engagement used in British Columbia, in Canada, where citizens from all over the province were randomly selected and then met over the course of a year to determine which type of electoral system should be put to the people in a referendum. The committee found this model attractive and were clear that it was important to try to actively engage citizens and involve them in significant constitutional change. But we did not find that any one form of such engagement could, or should, be mandatory. For example, a model that worked for consideration of the electoral system might not be appropriate to determine how best to protect habeas corpus. But this did not mean that the committee wanted the Government to ignore the possibility of public engagement in consultation, and if our proposal for a mandatory ministerial statement on constitutional Bills were to be adopted, the Government would have to justify explicitly the reasons why they did not undertake such procedures.

Some noble Lords have already told me that they felt that the committee’s report was somewhat unimaginative and downplayed the value of consultation. This was certainly not our intention, but we were concerned to learn from several witnesses that too often, today, public consultations are seen merely as box ticking. We wanted to find a way in which we could agree that some form of sensible consultation could be undertaken. It would be obviously of enormous value if noble Lords who are concerned could today offer solutions which might have wide application.

Finally, I want to say a brief word about the Cabinet committee system, which we considered imperative in this process. We felt it imperative that proposals for significant constitutional change be subjected to rigorous scrutiny in Cabinet committees, partly because of their potential impact across all government departments and partly because the committee system is an essential part of ministerial responsibility. Again, somewhat disappointingly, the Government responded that collective responsibility meant that internal Cabinet discussions could not be publicly revealed. Yet the committee was not asking for publication, simply that the ministerial statement formally record that proper Cabinet committees had taken place. Surely, that could not be considered a breach of official security.

In conclusion, I once again draw your Lordships’ attention to our inquiry’s most important finding: that there is no accepted current process for constitutional change. It simply does not exist. We therefore recommend the future adoption of a clear and consistent process, intended to form a comprehensive package from which the Government could depart only in exceptional circumstances and where there are clearly justifiable reasons for doing so. We did not think that this needed cumbersome or inhibiting legislation, as only the proposal for a Written Ministerial Statement on constitutional Bills would be a statutory requirement. We thought our recommendations were practical and achievable, and I hope that the Minister is able to provide your Lordships today with a more positive response than the Government’s formal response in the autumn. I look forward to the debate and I beg to move.

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[Baroness Jay of Paddington]

My Lords, this has been an excellent debate and I am very grateful to all noble Lords who have spoken for their high-class critique of the Select Committee’s report and their general welcome for our conclusions. I must also thank the Minister who, in his reply, was neither dreary nor weary, to quote the noble Lord, Lord Hennessy—that was the noble Lord’s description of the Government’s written response—but equally not particularly encouraging. If I look at the two fundamental points that the Select Committee wanted to make in our report, that constitutional legislation was clearly qualitatively different from other legislation and that it should be accompanied by a Written Ministerial Statement, which was in no way to be equated with Explanatory Notes—I think we made that explicit— I would have to say that the Minister was disappointing, in very much the same way as most noble Lords described the written response.

I would not agree with the opening remarks of the noble Lord, Lord Renton, about some of our proposals being over the top. I would describe them more as being practical, very measured and—I think this was the comment made by the noble Lord, Lord Wills—magisterial. I also thank the noble Lord, Lord Wills, for his development of our comments about public consultation. I think he has suggested a further inquiry for the committee, which was very helpful. I was also particularly pleased that the noble Lord, Lord Maclennan of Rogart, with his very distinguished background and record in this area of constitutional change, was so enthusiastic about our proposals. He suggested that there must be ways found for the House to take these proposals forward, perhaps through other methods of the Procedure Committee, et cetera. I look forward to some further work being done and this report not sitting on a dusty shelf. In the mean time, I beg leave to withdraw the Motion.

[The Deputy Chairman of Committees (Lord Colwyn)]

In fact, we should move that the Motion be agreed.

[Baroness Jay of Paddington]

I apologise. It shows how rusty my procedure is.

Motion Agreed.