Lord Chancellor and Law Officers (Constitution Committee Report)

Lord Hennessy of Nympsfield Excerpts

Thursday 20th July 2023 Grand Committee

[Lord Hennessy of Nympsfield (CB)]

My Lords, I thank noble Lords for their welcome back; it is an undiluted pleasure to be with you all again. It is funny what one misses. There is serious business, of course, but being a Member of this House is the most agreeable form of adult education the world has ever seen, and when it comes to providing weapons-grade gossip, it has no equal in any Parliament that I have ever come across.

Any nation that wishes to claim for itself the much-prized title of an open society has to meet, nourish and cherish a hierarchy of needs. Right at the top are the rule of law and regular elections conducted in a free and fair manner. In our country, so seriously do we take the rule of law that we keep a man or woman at every Cabinet table to incarnate it and to defend it through thick and thin in the person of the Lord Chancellor. As my noble friend Lady Drake has emphasised already, no other principle has a shop steward in the room to represent it at Cabinet meetings. If a Lord Chancellor fails in his or her duty of care, especially the defence of the independence of the judiciary, we feel, rightly, seriously let down at best and truly alarmed at worst.

Of all the senior posts in the Administration, the lord chancellorship must at times be a real short-straw draw of a job, for there will be occasions when your colleagues are itching to cut a corner, awash on a dopamine high or flushed with the righteousness that can befall those who think they have a special insight into the minds of the British people, unlike those tenacious human rights lawyers or the bewigged Inns of Court-polished smoothies sitting on the judicial benches nitpicking away at or, even worse, sabotaging the mandates of elected Ministers. I parody of course, but not entirely, for the Lord Chancellor lives by the light of an oath solemnly sworn, an oath for all seasons, with an overriding duty of speaking truth unto power in every circumstance.

The last great service Tom Bingham, the late Lord Bingham of Cornhill, did for us was to author a classic work on the rule of law in 2010. It was as if he stood at our shoulders as your Lordships’ Constitution Committee went about its work on the inquiry we are discussing this afternoon. Witness after witness praised it as the modern template for a rule of law country. For me, Lord Bingham’s thoughts and words help to explain why a society that lives by the rule of law is utterly different from one that does not. Perhaps my favourite passage in his book is the section where he cites the best-known encapsulation of the principle delivered by Thomas Fuller in 1733:

“Be you never so high, the law is above you”.


Lord Bingham wrote,

“If you maltreat a penguin in London Zoo, you do not escape prosecution even if you are the Archbishop of Canterbury”.


In case of any of your Lordships may have misheard what I have just said, I am not suggesting that any Archbishop of Canterbury, living or dead, has ever had such an encounter with a penguin, and nor, I am sure, did Lord Bingham.

The rule of law is a principle for all of us to live by, all of the time. As the noble Lord, Lord Finkelstein, put it on BBC Radio 4 on 11 June this year,

“the rule of law depends on enormous universal acceptance”.

People in political and public life need a string of rule of law alarm bells strung around their cortex. Somewhere in the minds of everyone engaged in the professions of Government, and the law in particular, there needs to be a bell tower ready to peal out a tocsin of warning when the rim of the rule of law is being approached by some new policy, plan of action or draft statute. Such a capacity should become innate, a crucial and permanent part of their political consciousness. For living up to the conventions and probities of the British system of government is very much a state of mind, given the absence of a formal written constitution. That is why we have various codes, ministerial and Civil Service, and the Nolan principles of public life. That is why we have Lord Chancellor’s oath, and that is why we need a Prime Minister’s oath as an aide to keeping all of the decencies and conventions alive and flourishing—but that is a subject for another day.

EU Referendum and EU Reform (EUC Report)

Lord Hennessy of Nympsfield Excerpts

Wednesday 15th June 2016 Lords Chamber

[Lord Hennessy of Nympsfield (CB)]

My Lords, I declare my membership of your Lordships’ Science and Technology Committee and my fellowship of the British Academy.

In the grand sweep of the wider history of our islands the science and technology element of our debate today is a tad strange, because the life of the mind should have little or nothing to do with customs unions, and that is what the European Union, in its various forms since 1952, has been and will remain. Free trade comes no freer than the global intellectual trade in ideas and research. A free trade of the mind is something we can all sign up to, wherever we stand on the great European debate. The United Kingdom was a very considerable player in the world when it came to research, science, technology and the arts and humanities before we joined the European Economic Community in 1973, and it will remain so whatever happens on 23 June.

The reasons for our global prowess in the little grey cells department, if I can call it that—our cultural World Service, as the noble Lord, Lord Bragg, of Wigton, likes to put it very well—are multiple. I am pleased to say that the British Academy will soon be mounting a study of its vectors and ingredients, with the encouragement of your Lordships’ Science and Technology Committee. All that said, research needs fructifying institutions and funding streams to irrigate the life of the mind at both the national and international levels, and it is my belief that our 43-year membership of the European community has, on balance, been a positive aid to this end. From the evidence sessions of your Lordships’ committee on today’s theme I acquired an impression that had not dawned on me before that this aspect of our relationship with Europe has been the least jagged and raw of all the other linkages which, taken together, have produced a very substantial emotional deficit with the European Union on the part of the people of our country, or many of them. This, I fear, will endure even if the country votes to remain.

I have often pondered the roots of this emotional deficit. It has occurred to me more than once that it is a tragedy that we did not invent the community. The European Coal and Steel Community came out of the minds of clever, Catholic, left-wing, French bureaucrats. Most Brits have a problem with three of those five. I have not, as it happens, but most have. If only we had invented it, it would be a very small secretariat in an area of high unemployment, sending perhaps two or three letters a year to the member countries: “Would you mind doing a little more on free trade here, here and here—but only if you’ve got time?”. We are not a directives people. The emotional deficit is very powerful. Of course I am being facetious in the way that I am regarding it—it is very deep and complicated.

Science and technology, plus funding for the arts and humanities, are, as the committee’s report puts it,

“a major component of the UK’s membership of the EU. Nearly one fifth (18.3%) of EU funding to the UK is spent on research and development”.

There would, I believe, be a real loss to the UK on this front if we leave. It was put to the committee, as our chairman, the noble Earl, Lord Selborne, said earlier in the debate, that the funding streams we acquire from the EU—more than we put in—are the equivalent, at least, of an extra research council for the UK. We might also lose part of the human flow in and out of our labs that the free movement of people within the EU permits—in an era where, ever more, the prizes go to the international and the collaborative. It is crucial for our country to think heavier than our weight in the world, as we have done since at least the 17th century. I am convinced that our membership of the EU enhances our ability to do this.

Switzerland, another country that prides itself on thinking heavier than its weight in the world, is not a happy example for those who wish to leave, even though Switzerland has associated country status in its relationship with the EU. The committee received eloquent testimony on this from Professor Philippe Moreillon, vice-rector for research and international relations at the University of Lausanne. He said that when Switzerland,

“became an associate, it was much, much easier, of course, but we are still not sitting at the decision table or on the consultative committees where the decisions are made. We have a number of ways to interact, such as through university associations. We are still in the corridor, but at least we are part of the whole programme”.

The implication of this evidence is that if the UK leaves it will, in terms of European R&D funding, become a corridor nation, which is a condition not to be wished for.

Remainers, of whom I am one, have to recognise, however, that there are unsatisfactory elements within the existing scientific relationship, which the Select Committee inquiry illuminated. Harmonisation and EU regulations can bite into that prime principle of intellectual free trade. For example, the committee concluded that, in the area of genetic modification and clinical trials, UK business and research were placed at a disadvantage compared to non-EU competitors because of EU regulations.

This leads to my concluding thought. If we remain, how refreshing it would be if the Prime Minister quickly turned up in Brussels with a positive, constructive plan for a wider reform of the European Union. I was greatly impressed by what the noble Lord, Lord Howell of Guildford, said earlier in our debate about wider reform—a wider reform of which a greater slice of funding and trimming of bureaucracy for R&D could be a shining element. Not only would this be an inherently good thing, but just think of the shock value. To adapt that great expert on national identity, PG Wodehouse: for a very long time now in Brussels, it has always been easy to distinguish between a ray of sunshine and a British Prime Minister bearing a grievance.

Freedom of Information Act 2000

Lord Hennessy of Nympsfield Excerpts

Tuesday 17th January 2012 Lords Chamber

Tabled by

[Lord Hennessy of Nympsfield]

To ask Her Majesty’s Government how extensions in the scope of the Freedom of Information Act 2000 and their transparency agenda will affect the availability of government records to the public.

[Lord Hennessy of Nympsfield]

My Lords, I very much welcome this evening’s debate on access to official information and I am grateful to so many noble Lords for wishing to speak. It is, I think, the first time that your Lordships’ House has had a chance to discuss the plans for additional openness announced by the noble Lord, Lord McNally, on 7 January 2011. He outlined four changes that the coalition proposed to make: increasing the number of organisations to which freedom of information requests can be made by bringing in such bodies as the Association of Chief Police Officers and the Financial Services Ombudsman; consulting on drawing in a range of further bodies, such as examination boards; undertaking post-legislative scrutiny to see how the Freedom of Information Act 2000 has worked in practice—a task which the Justice Committee in the other place will take up next month; and—especially dear to my historian’s heart—making most public records available at the National Archives after 20 years instead of the current 30 years.

I know that the noble Lord, Lord McNally, is keen on this. He has been a good friend to historians. He has always been willing to talk to my students about the 1976 IMF crisis when he became a prime historical exhibit while working in No. 10 for the greatly missed Lord Callaghan of Cardiff.

Perhaps I may this evening mirror the Government’s approach by taking a wider-lens view of freedom of information and look at it as a question of access to official information as a whole. To do so, our field of vision needs to encompass not just the workings of the Freedom of Information Act, for access is a matter of linkages embracing with FOI the output of the public records system and the often neglected, although related, matter of government-commissioned official histories—a subject on which the noble Lord, Lord Rodgers of Quarry Bank, led a debate in your Lordships’ House four years ago.

Before turning to public records policy, I must first declare an interest as president of the Friends of the National Archives and as Attlee Professor of Contemporary British History at Queen Mary, University of London. Given my trade, I especially welcome the coalition’s pledge to implement the provisions of Part 6 of the Constitutional Reform and Governance Act 2010, which was passed in the last days of the Labour Government and created a new 20-year norm to replace the 30-year rules that have been operational since 1972. The plan is that from January 2013 an extra year’s worth of declassifications will be added to the 30-year process until the 10-year gap has been closed.

I understand that the statutory instrument for triggering the new archival flow has yet to be signed. I am neither a pessimist nor a sniffer of conspiracies but I would welcome reassurance from the Minister on this point. In the same spirit, I would welcome publication of the 20-year rule guidelines for record reviewers in government departments—who are fondly known as “the weeders” —so that Parliament can check that they will be no more restrictive than the current ones for 30-year releases.

I am confident that the new 20-year rule will stimulate a cataract of fine theses and excellent books, for a fresh run of documents is like giving the historical profession a new currency with which to trade. This is precisely what happened in the 1990s after the noble Lord, Lord Waldegrave of North Hill, who I am delighted to see in his place, as Sir John Major’s Minister for Open Government, put in place what we historians called, and still do, the “Waldegrave initiative” whereby departments were encouraged to re-examine particularly sensitive files that had been retained for longer than 30 years.

By 1998, when Whitehall stopped measuring its yield, 96,000 files had been declassified as a result, which filled gaps in the defence, intelligence and nuclear elements of the post-1945 secret state. I am full of admiration for the departmental records teams in Whitehall and the staff of the National Archives. I am equally aware of the pressure on budgets and manpower, but I urge the Government to consider commissioning a “Waldegrave 2” to run alongside preparations for the 20-year rule to ensure that as little possible remains in departmental strong rooms, including files that were still too sensitive to release in the 1990s but that might safely be declassified now. If the Minister agrees, we might even call the initiative “McNally 1”.

Those 30-year releases are a form of delayed freedom of information. FOI disclosures are welcome and often highly revealing, but they are fragmentary and it is runs of documents that historians need. FOI, to be candid, is not an unmixed blessing for scholars because it has led to greater caution in what is written down.

I turn now to official histories. I have not written one myself, but I am very grateful to those who have, not least for providing a window into Whitehall short of 30 years, and, in Christopher Andrew’s authorised history of MI5 and Keith Jeffery’s history of MI6 up to 1949, opening up windows into the necessarily most opaque parts of the secret state. The Cabinet Office, under the energetic guidance of Mrs Tessa Stirling, is the engine room of official histories. Thirteen have been commissioned since 2000, eight of which have already been published. The Pilling report of 2009 urged still more and suggested enhancements in the commissioning process, while the Hamilton report of the same year laid out improvements in the marketing of the books produced. The Government have not yet pronounced on Pilling-Hamilton. I hope the noble Lord, Lord McNally, will this evening be able to accept the recommendations and undertake to implement them when funds allow.

For the general public the most visible manifestation of the public records system is the annual festival of 30-year revelations in the media between Christmas and the new year. This time, understandably, it was the riots of 1981 that attracted most attention. Few noticed a security file in the No. 10 papers of the noble Baroness, Lady Thatcher, dealing with a leak inquiry instigated by the noble Lord, Lord Armstrong of Ilminster, then Cabinet Secretary, into a story on civil contingencies planning that I had written in the Times as that paper’s Whitehall correspondent. I am glad to say that the investigation got absolutely nowhere, but its declassification, as I think my noble friend Lord Armstrong would agree, has brought a frisson of amusement to both of us—a kind of bond between us after all these years.

There is, however, a truly hidden treasure in the latest releases for those with a taste for personal and political drama, after, perhaps, seeing that remarkable film “The Iron Lady”. It is a Cabinet Office file containing the records of the third world war that never was of March 1981: a transition-to-war drill exercised in great secrecy in Whitehall every two years in which officials role-played Ministers. It ends with the United Kingdom under conventional and chemical weapons attacks from the Soviet Union and its allies, and the British War Cabinet reaching and crossing the nuclear threshold, with the role-played—I emphasise that—Mrs Thatcher declaring that never before had a Cabinet been faced with such a grim choice between capitulating to a powerful and malevolent aggressor and embarking on a course of action that could end with the destruction of civilisation. It is gripping, desperate and—mercifully—fictional stuff, which cries out, I think, to be converted into a film script.

To finish by returning to reality, I stress that well organised and sustained access to official information, current and past, is crucial to the accountability of our system of government and the richness of the historical residue that clings to the Velcro of our collective memory. Such practices enhance the depth and quality of the rolling national conversation about government policy and politics without which no open society can flourish.