Scotland Bill

Debate between Lord O'Neill of Clackmannan and Lord Sewel

Thursday 15th March 2012 Lords Chamber

[Lord Sewel]

My Lords, normal service has roughly been resumed. Having spoken against the proposition put by my noble friend on the last amendment, I am now right with him. His contribution touches on two issues. One is the actual behaviour of civil servants in aligning themselves with a particular political agenda, and the other is the more nuanced issue of how civil servants should behave in a devolved structure. They are slightly different. On the first one, I would have thought it preferable that a civil servant, certainly a senior civil servant, should say nothing in public on any contentious political issue at all. They should say and do nothing that would make it impossible for that person to work with an incoming Administration. If we get that polarisation of politicians and civil servants divided on one side or the other, we would be moving towards an American system, which I think is to be avoided at all costs.

I want to say more about the role of civil servants in a devolved system. Of course one says immediately that their role is to support Ministers, engage in policy development and do all those things that, on the whole, we know they do extremely well. But devolution brings a unique and arcane issue to the fore. We have not faced it before because we have had a United Kingdom Government, but now with devolution the issue that comes into play is that of vires. The question is this: to what extent and how should any civil servant advise a Minister on a policy area that is outwith the vires that he enjoys? That is an important and sensitive issue to try to tease out.

I do not think that the amendment as it stands can work because the 1998 Act clearly indicates that there is a mechanism by which reserved powers can be devolved to the Scottish Parliament, and in that circumstance there would have to be discussions between Scottish Ministers and civil servants on a devolved matter, so it is not quite as simple as I and my noble friend thought initially. However, in Schedule 5 to the 1998 Act we find that the constitution is a reserved matter, as is,

“the Union of the Kingdoms of Scotland and England”.

It would seem that the senior civil servant in Scotland is giving policy advice and dealing with policy development in that area. So if it is good for that, is it good for other areas of the devolved agenda? I turn to just one, that of defence. The Act states:

“The following are reserved matters … international headquarters and defence organisations”.

One of the defence organisations is NATO. Would it be right and proper for a civil servant in Scotland to advise SNP Scottish Ministers on how they could secure their policy objective of Scotland no longer being a member of NATO? That is a question which I think ought to be asked, and for a whole number of other major issues in the reserved areas it has to be asked whether it is proper in any sense for a civil servant to give advice on how the policy of the Government and the Parliament that properly have responsibility in that area should be thwarted. Just think of what would happen the other way around. If it became known that civil servants in Whitehall departments were advising their Ministers on how they could undermine Ministers in Scotland, it would be a constitutional outrage.

I recognise that this is a difficult and sensitive subject, but it is one that we will have to face up to and, it is hoped, we will be able to secure a resolution that proper discussion should take place, but not something that is aimed at absolutely undermining the devolution settlement itself.

[Lord O'Neill of Clackmannan]

My Lords, I congratulate my noble friend on his amendment. Even if it is defective, it is important that this issue gets raised. I do not have experience of ministerial office, but for 10 years—and some years before that, even—I chaired a Select Committee in which we had civil servants being asked leading questions, difficult questions and sometimes very uncomfortable ones. By and large, however, we never had any attempt to hide behind some kind of political obfuscation. We at no time felt that they had assumed a role which involved the defence of their Minister beyond reasonable bounds or with a degree of loyalty that, frankly, the individual politicians did not merit.

Equally importantly, they were able to make quite clear that they represented continuity in government, which the viscidities of political change left in a number of respects unaltered. By that, I do not mean that they were standing in the way of change, but in the period after a Government are elected, when Minsters are finding their feet, or when new Ministers are appointed, it is to the decency and honesty of the Civil Service that you look for that degree of party-free continuity. If that is going to be endangered at a time of political uncertainty in Scotland, then, to my mind, it has to be spoken about.

We tend in this country not to hang civil servants out to dry in the way that my noble friend has done this evening, or repeat the stories which have appeared in the press. While I would not always necessarily regard the sources which my noble friend relied upon this evening as the most accurate, the fact is that there are remedies if misrepresentation is taking place. None of these remedies would appear to have been exercised, so we have to say that, to all intents and purposes, what has been said here this evening is true. Therefore, it raises quite serious problems. At the moment in Scotland, there is a sense in which we have a Civil Service which is apparently almost craven at the top, at least in part, in its willingness to assist the separatists in their enterprise. Not only that, but I am very sad that the composition of the Select Committees in the Scottish Parliament, which reflects the distribution of votes and seats—as is perfectly correct—seems to regard loyalty to the Government as more important than loyalty to the facts. So we are getting a succession of reports which reflect the political bias of the individuals rather than the weight of evidence which the committees have had presented before them. You get a degree of difficulty with the positions being adopted by senior civil servants, and at the same time a lack of effective criticism from the organs of Parliament which are supposed to be keeping them in line.

In the other place, we have a reasonably effective Parliamentary Question system. It has to be said that there is a lot of grandstanding and theatre about it. If you want to rigorously interrogate Ministers or anybody else involved in the political system of our country, the Select Committee is far and away the most effective means of doing so.

In Scotland at the moment, we have a transition from a unified system of public service to one which is, to an extent at least, split off from the rest of the UK. I am not saying that, in technical terms, the wages, the conditions and the career opportunities are not still there, but it is fair to say that, prior to devolution, there were career development avenues which individual civil servants could take advantage of. They could have periods in the Treasury or in English, or sometimes British, departments where they were able to compare and contrast the manner of working. I am not certain that that is given quite the weight in the Scottish Executive that it once enjoyed in the old-style Civil Service. If it is not, as I suspect, it is creating a mood within Scotland whereby it does not need to think outside the Scottish box, either for solutions or for Civil Service priorities.

This debate is an opportunity to issue a wake-up call to the Scottish Civil Service and say, “You are still part of a United Kingdom. The leadership of your organisation should be thinking not just about what is happening within Scotland and the areas of responsibility”. There are areas of overlap, but that does not necessarily mean that the Scottish Civil Service has to say that what happens outside of Scotland does not matter. We have to give some weight to the degree of overlap, but no less weight to those areas of sensitivity. I have spoken previously about the apparent contradiction of having an energy policy for the United Kingdom which in Scotland precludes the prospect of nuclear power. If a Minister was to refuse a planning application, I presume that it would be on the basis of Civil Service advice—or perhaps it would not; we do not know. At the moment, I would be a wee bit worried about the balance of the evidence presented before the Minister if Scotland was so hell-bent on preventing nuclear weapons. Equally, on the further stages of the independent deterrent, if we are to have within the United Kingdom the capacity for the nuclear submarines to be docked in the west of Scotland, these facilities will need upgrading, planning changes and the like. If that is going to happen, can we be sure that the message that gets through is that the planning applications stand up quite clearly? That is if they do—if they do not, it is equally the obligation of the civil servant to be straight about it. But if we were to have the frustration of areas of national defence on the basis of spurious advice relating to planning applications and the like, we would have serious grounds for concern.

We might have seen fit this evening—or tonight, because we are nearly at 10 pm and there seems no enthusiasm to finish the proceedings, so I will continue for a minute or two more—to have counted the House, and the Government might have lost everything that they have got so far. While some of us have been talking and responding in dialogue with people on other sides of the Chamber, the power was in our hands if we had wanted to use it to have screwed up the whole proceedings. People seem to forget that in the rather cavalier manner in which they have allowed this evening’s proceedings to go on beyond reasonable bounds.

I return to the point that I want finally to make. The strength of our Civil Service has been in its independence and its continuity. Its independence from political interference on the one side and its reluctance to get involved in politics on the other have meant that, in times of political and constitutional uncertainty, the Civil Service, by and large, has been able to sustain continuity. Nearly two years ago, when we had that brief interregnum between the previous Labour Government and the coalition, it was to the civil servants that people looked for advice; it was to the Executive that the politicians looked for guidance and support. In a constitutional crisis of the kind that could arise in Scotland, either as a consequence of a referendum or a change of Government, I am not sure that there would necessarily be a seamless transition from one set of conditions to another that political change of a radical kind might bring about. Many of us are uncertain about that and about the quality of the advice that would be made available to politicians of all political parties in Scotland given the present irresponsible attitude that is being adopted by people who should know better and whose training should have provided them with an understanding of the sensitivities that they sadly seem to have ignored at this stage.