Permanent Secretaries: Appointment and Removal (Constitution Committee Report)

Lord Butler of Brockwell Excerpts

Thursday 9th May 2024 Grand Committee

[Lord Butler of Brockwell (CB)]

My Lords, today’s debate has been given a new topicality by two reports. One was the report of the Institute for Government, which has been referred to, and the other, which has not been referred to, is a report in the Times of a speech by Mr John Glen, a Cabinet Office Minister, in which he is reported as saying that the Government are to introduce new rules for managers to deal with underperforming staff. It is now 25 years since I retired from the Civil Service, so I am not competent to give an informed commentary on the performance of today’s service. I want to concentrate my remarks on the constitutional implications of Mr Glen’s reported remarks on today’s subject of the appointment and dismissal of Permanent Secretaries.

We must start by recognising that, like the armed services and judges, the Civil Service and elected politicians are separate professions, both serving the Crown. Civil servants and Ministers should form a unity in working for the country under the leadership of Ministers, who have earned that right to lead by virtue of their election. However, the two professions are separate, and the obligations that they have differ in some respects. On the one hand, Ministers have a right to be served by people in whom they have confidence and they have a right, therefore, to have a strong voice in appointment, but the head of the Civil Service also has a responsibility to build for the future an impartial Civil Service competent to serve Governments of different colours, and my noble friend the First Civil Service Commissioner has a duty to preside over a process that reconciles these two obligations. I was pleased to see that the Constitution Committee concludes that the recruitment principles formulated by the Civil Service Commission strike a good balance in reconciling these two sets of interests.

I now turn to the removal of Permanent Secretaries. Although a Minister has a right to be served by a Permanent Secretary in whom he has confidence, he does not have the right to dismiss a Permanent Secretary. That is why Kwasi Kwarteng’s dismissal of Sir Tom Scholar was constitutionally wrong. If Mr Kwarteng and the Prime Minister wanted to remove Sir Tom Scholar, it was a matter for the head of the Civil Service. He should have handled it, not politicians. A Permanent Secretary, or indeed any official, is an employee of the Crown, not of the party in power.

It is timely to be discussing this now as we approach a general election. I remember that when senior appointments had to be made during a period leading up to an election, I, as head of the Civil Service, was authorised by the Prime Minister to sound out the leader of the Opposition, not to give him a veto but to ensure that the planned appointee would be acceptable if there was a change of Government. I never encountered any difficulty about this, and I hope that, if necessary, that is happening today.

We can take some encouragement from the fact that, under Mr Sunak’s regime, the instability among Permanent Secretaries appears to have diminished and from the fact that the Government have accepted all the main recommendations of the Constitution Committee. Like others, I warmly congratulate the committee on its report. We can also be, at this moment, further encouraged by both the leader of the Opposition and his chief of staff knowing the Civil Service from the inside. I therefore have confidence that the conclusions and recommendations of the Constitution Committee in support of an impartial and politically independent Civil Service will be respected by any new Administration. I want to see deficiencies in the performance of the Civil Service put right but, in my view, this can be done only by good and respectful leadership on the part of the Civil Service and Ministers, not by imposed regulation of the sort threatened by Mr Glen.

Cabinet Manual

Lord Butler of Brockwell Excerpts

Monday 25th March 2024 Lords Chamber

[Baroness Neville-Rolfe (Con)]

I will make two points. First, I told the noble Lord that we were looking at this issue and that we might issue guidance on the subject, because the Cabinet Manual is about bringing conventions and rules together, rather than creating them. Secondly, much of the Cabinet Manual is on matters specific to the UK Government and reserved matters. However, my noble friend the Foreign Secretary—to mention him again—has written to the First Minister of Scotland about the importance of a reserved area for foreign affairs and how that should be conducted.

[Lord Butler of Brockwell (CB)]

My Lords, I pay tribute to the noble Lord, Lord O’Donnell, who pioneered the publication of the Cabinet Manual—it could never have happened in my day. The Minister will recall that the publication was extremely valuable in the lead-up to the 2010 election and in setting the rules if there was a hung Parliament. Are we to take it that the delay this time means that the Prime Minister does not anticipate a hung Parliament?

[Baroness Neville-Rolfe (Con)]

It is difficult to draw any conclusions of that kind. However, I share the noble Lord’s tribute to the noble Lord, Lord O’Donnell, in putting this together. There are many well-thumbed copies around the Civil Service.

Covid-19 Inquiry

Lord Butler of Brockwell Excerpts

Thursday 8th June 2023 Lords Chamber

[Baroness Neville-Rolfe (Con)]

Although this is a much wider inquiry even than other previous important inquiries, the process that has been followed by the Cabinet Office and across Whitehall is very similar in terms of providing information to the chair. There is a judicial review because of a specific technical point raised by the Section 21 notice that has been issued. In terms of judicial review, the noble Lord is right that judicial review must be used with circumspection. However, there is an important technical point here about whether it is right to provide unambiguously irrelevant material to the inquiry which is the subject of the review.

[Lord Butler of Brockwell (CB)]

My Lords, there is a strong public interest in this inquiry being carried out constructively and expeditiously, and that should also be a public interest between the Government and the investigation. Does the Minister agree that it would be helpful if judicial review proceedings were stayed so that the Government and the inquiry could reach a reasonable accommodation on this issue?

[Baroness Neville-Rolfe (Con)]

I agree with the noble Lord about the possibility of an accommodation being reached. We have had discussions with the inquiry to bridge the gap between sincerely held views. However, we have also requested that any judicial review is held expeditiously, and we are very glad that the court has agreed to deal with this before the end of June. In the meantime—and I cannot emphasise this more strongly—every day more material is being sent into the inquiry and the large teams working on this important matter are co-operating.

Civil Service Impartiality

Lord Butler of Brockwell Excerpts

Tuesday 7th March 2023 Lords Chamber

[The Minister of State, Cabinet Office (Baroness Neville- Rolfe) (Con)]

I will set out the facts from a slightly different perspective. Sue Gray, formerly Second Permanent Secretary at DLUHC and at the Cabinet Office, resigned from the Civil Service on Thursday. This resignation was accepted with immediate effect. Because it was unique—and I would say unprecedented—for a serving Permanent Secretary to resign to seek to take up a very senior position, that of Chief of Staff working for the leader of the Opposition, we are looking into the circumstances leading up to her resignation. However, it is incumbent on the office of the leader of the Opposition to be much more forthcoming about the details of what discussions were involved and the timing of those discussions so that we are able to complete our fact-finding exercise.

Ministers must be able to speak to their officials from a position of absolute trust. It is the responsibility of everyone in this House to preserve and support the impartiality of the Civil Service, and this step does the opposite.

[Lord Butler of Brockwell (CB)]

My Lords, the Minister sometimes refers to the fact that at one time she used to work for me when she was a professional civil servant in the Cabinet Office. Does she agree that the appointment of Sue Gray to give professional assistance to the Opposition in preparing for the possibility of government throws no more doubt on the impartiality of the Civil Service than the noble Baroness’s very welcome presence on the Conservative Front Bench?

[Baroness Neville-Rolfe (Con)]

I do not like to comment on individual cases.

Ministerial Appointments: Vetting and Managing Conflicts of Interest

Lord Butler of Brockwell Excerpts

Tuesday 24th January 2023 Lords Chamber

[Baroness Neville-Rolfe (Con)]

I have to say that my noble friend is completely right. We must find out what the facts are; the independent adviser is looking into this. We need due process. That is why the Prime Minister is ensuring that we look at the actions that were taken. It is also why we have the independent adviser who has now been appointed, which I think has been welcomed right across the House.

[Lord Butler of Brockwell (CB)]

My Lords, is it not the case that while officials may bring to the Prime Minister’s attention matters within their knowledge bearing on ministerial appointments, they must have regard to the laws governing personal privacy, including privacy on tax matters?

[Baroness Neville-Rolfe (Con)]

The noble Lord is right. The other point worth making is that, as a Minister, it is your personal responsibility to make it known to your Permanent Secretary and, if appropriate, to the independent adviser, what conflicts of interest or perceived conflicts of interest you might have. This is a process that is gone through scrupulously, in my experience, when Ministers are appointed.

Public Duty Costs Allowance

Lord Butler of Brockwell Excerpts

Monday 21st November 2022 Lords Chamber

[Baroness Neville-Rolfe (Con)]

My Lords, hitherto this allowance has been the subject of cross-party consensus. Of course, it was introduced by the Conservative Government to update the arrangements at the time of the late Baroness Thatcher’s retirement and has been claimed since 2013 by several former Prime Ministers. However, no claims have been received from Boris Johnson or Liz Truss in relation to the PDCA; nor has any indication been given that claims will be made.

[Lord Butler of Brockwell (CB)]

My Lords, I was Cabinet Secretary and Mr Major was Prime Minister when this allowance was introduced. Is not the noble Lord, Lord Rennard, being a little ungenerous? Former Prime Ministers do incur extra costs as a result of the public office that they have held. The allowance need be claimed only to the extent that they incur those extra costs.

[Baroness Neville-Rolfe (Con)]

I very much agree with the noble Lord, Ex-Prime Ministers still have a special position in public life and need to pay office and staff costs in support of that. Sometimes, things change. The arrangements referred to were extended to a colleague of the noble Lord, Lord Rennard, Sir Nick Clegg, who was Deputy Prime Minister from 2010 to 2015, a unique status at that time. He claimed £444,000 before he left to become a highly paid Silicon Valley executive and lobbyist.

House of Lords (Peerage Nominations) Bill [HL]

Lord Butler of Brockwell Excerpts

2nd reading
Friday 18th November 2022 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, like others, I support the Bill and shall in a moment address some of the important points made by the noble Lord, Lord Leigh. The Bill is serious and practicable, and one of its many merits is that it does not try to do too much. It does not remove the prerogative of the sovereign to create Peers with a right to sit in this House. It does not remove the exclusive right of the Prime Minister of the day to advise the sovereign on the creation of such Peers. With respect to the noble Lord, Lord Leigh, it does not stop the Prime Minister overruling the advice of the commission. It will not be the case that an unelected body has the power to make appointments to this House.

Enshrining the House of Lords Appointments Commission in statute was recommended as long ago as 2000 by the royal commission on the House of Lords under Lord Wakeham, on which I served—and it does seem a very long time ago. The Bill’s widening of the criteria which the commission can take into account to include qualifications for the job is widely supported—I think we would all agree that, on the basis of what she has done subsequently, the noble Baroness, Lady Wheatcroft, would have passed that test. Also, the requirement on the Prime Minister to have regard to maintaining the non-party element at not less than 20%, to ensuring that no political party has an overall majority and, crucially, that the membership of this House should be no greater than the House of Commons, are widely supported by outside commentators, and were also overwhelmingly endorsed by your Lordships in our debates on the Burns proposal.

So this is not a radical Bill. Many would say, and some have said, that it is not nearly radical enough. But because it is not radical, it seems to me realistic. Indeed, it could be said to be consistent with the practice that was in fact followed by Theresa May when she was Prime Minister. I believe that, provided efforts are not made to add more radical provisions to the Bill, it should pass this House easily, and I think it could also pass in the other place. But attention must be paid to the very important point made by the noble Lords, Lord Kakkar and Lord Leigh. None of us would want the courts to get involved in appointments to this House, and I do not believe the courts would want it. I am not generally in favour of ouster clauses, but this is an occasion when adding one to the Bill would be a sensible measure.

In September 2021, the noble Lord, Lord True—not then in the eminent position he is now—said that the Government had no plans to change HOLAC’s role or remit or to place it on a statutory footing. But I hope that that was then and this is now. We have a new Government. I doubt whether the new Prime Minister has had time to turn his mind to this matter, so I do not expect the Minister today to be able to give us the new Government’s definitive view; indeed, I hope that she does not. But I do hope that the noble Baroness, who is an old friend of mine, and the Leader of the House know that, whatever they may be required to say, what has been happening with appointments to the House of Lords is a discredit to the Government and a potential embarrassment to the new King. The Prime Minister has promised a Government of integrity, professionalism and transparency. I hope that, on our behalf, the new Leader will represent to the Prime Minister and his Cabinet colleagues that this modest Bill is a step towards reassuring the public that the Prime Minister means what he has said and that his Government would do well to give this Bill time to pass. It would do the Government credit if they did.

Peerages: Letters Patent

Lord Butler of Brockwell Excerpts

Thursday 17th November 2022 Lords Chamber

[Baroness Neville-Rolfe (Con)]

It is a convention that has been observed by successive Governments that a resignation honours list can be put forward by a departing Prime Minister. It can take a bit of time: I think that Theresa May and John Major took a few months to put their resignation lists together. They are then forwarded to the Prime Minister of the day. The practice now is that the House of Lords Appointments Commission looks at proposals and makes recommendations, which are taken into account by the Prime Minister in the confidential advice that he offers the sovereign.

[Lord Butler of Brockwell (CB)]

My Lords, I am sure that before tomorrow’s debate the Minister will study the Bill proposed by the noble Lord, Lord Norton, and I think she will see that it does not propose that the Appointments Commission should determine membership of this House but that that responsibility should remain with the Prime Minister.

[Baroness Neville-Rolfe (Con)]

I am so grateful to my former boss for that excellent point of clarification. I shall listen very carefully throughout the Norton debate, and bear in mind the need to look at the detail and be very careful.

Standards of Behaviour and Honesty in Political Life

Lord Butler of Brockwell Excerpts

Thursday 23rd June 2022 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, this is the second successive Thursday on which the House has called on the noble Lord, Lord True, to demonstrate his skill at the Dispatch Box in batting on a sticky wicket. Without dissenting from anything that has been said in the debate, I may surprise him by offering the Government some support about the mechanics of upholding ministerial standards, albeit with a major qualification.

I do not think any of us would challenge the proposition in the Motion in the name of the noble Lord, Lord Morse, that a

“reduction in the standards of … honesty in political life”

has an

“impact on the democratic process”.

Various studies, including one reported by the Committee on Standards in Public Life, indicate the public view that Ministers and MPs have poor ethical standards in comparison with others who deliver public services, such as doctors, teachers, judges and local government officials. Such a loss of confidence between the Government and the governed is very serious.

However, here is my support for the Government. The Government’s response, published on 27 May, to the Committee on Standards in Public Life’s recommendations on the Ministerial Code, seems to me largely right, despite criticisms in the media. The Government have taken a measure to introduce gradations in the penalties for breaches of the Ministerial Code. I have long felt that the view that any breach of the code, however trivial, requires a Minister’s resignation, is wrong. The Government have now said that minor breaches can be dealt with by lesser sanctions such as loss of salary or even an apology. I welcome this. The Prime Minister mishandled Sir Alex Allan’s report into alleged bullying by Priti Patel. Instead of rejecting his conclusion that there was a degree of bullying for which there was ample evidence, the Prime Minister could have accepted that but not required such a severe sanction as her resignation. If he had, the complainants could have had a remedy and the Prime Minister could have retained the services of Sir Alex Allan.

The second recommendation in the committee’s recent report on ministerial interests, which the Government have partially accepted, is that the adviser on ministerial interests should be able to initiate investigations. The Government have accepted this, subject to the adviser consulting the Prime Minister. Many have criticised the requirement for the Prime Minister’s approval, but it seems realistic. The adviser’s investigations are unlikely to make progress in government if the Prime Minister has not authorised them.

The Government rejected the recommendation that the various regulators of ethics—the independent adviser on ministerial interests, the Commissioner for Public Appointments, and the Advisory Committee on Business Appointments—should all be put on a statutory basis and their powers backed by legislation. The Government do not like that recommendation because they want these matters to be governed in the political sphere. Legislation would bring the courts and judges in on the act. Again, I have sympathy with the Government’s view, but this is where I have an important proviso. The public will accept that allegations of ministerial misconduct should be dealt with in the political sphere only if they have confidence they will be dealt with fairly and rigorously. I am afraid that the Prime Minister has lost the public’s confidence over this, through his handling of the cases of Priti Patel and Owen Paterson, and through his own behaviour.

Since the Government’s Statement of 27 May, we have had the resignation of the noble Lord, Lord Geidt, and the Prime Minister is reported to be considering whether and how the post needs to be replaced. I am sure that a replacement is needed because, if a Minister’s conduct has to be investigated, the Prime Minister cannot convincingly do it himself. There is a need for an independent person or body to carry out the investigation if its results are to carry confidence. I speak with some experience when I say that it should not be the Cabinet Secretary, or any other civil servant, who carries out that investigation. Sue Gray was put in a very difficult position when she was asked to investigate whether the Covid rules had been broken by the Prime Minister or her own Civil Service boss. It has become apparent from the Geidt episode that if the Prime Minister’s own conduct is under scrutiny, judgment on it cannot be made by his own adviser. The outcome is bound to be unhappy: either the Prime Minister goes, or the adviser does. The Prime Minister’s conduct has to be dealt with by his own party, by the Cabinet or, ultimately, by the electorate.

In terms of the Motion in the name of the noble Lord, Lord Morse, I have no doubt that recent events had an impact on our democratic life, and it is a damaging impact. I also believe that no system of regulation will be adequate unless our leaders themselves demonstrate high standards. There is an old saying that a fish rots from the head; that is why we need to be concerned about the matters we are discussing today.

Houses of Parliament: Co-location

Lord Butler of Brockwell Excerpts

Thursday 16th June 2022 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, I join others in thanking the noble Lord, Lord Norton, for instituting this debate. I join the noble Lord, Lord Balfe, in thanking the noble Lord, Lord Norton, and the noble Lord, Lord Cormack, for the work that they do on the Campaign for an Effective Second Chamber. There is no doubt that the noble Lord, Lord Norton, today made a devastating case as to why the effectiveness of not only this House but Parliament would be greatly damaged if the House of Lords was no longer collocated with the House of Commons.

It is not the first time that I have felt some sympathy for the noble Lord, Lord True, in having to defend the indefensible. I have no doubt that he will do it with his usual skill and good humour, but I feel the discomfort that might have been felt by a citizen of ancient Rome sitting in the Colosseum waiting for a poor Christian to face a lion—or in this case, a pride of Lions. It is an impossible case to make.

However, I do the Government the compliment of believing that they are serious about the levelling-up agenda. So although I share the indignation that many of your Lordships have expressed about the Government’s handling of this issue, we are right to discuss seriously the pros and cons of the suggestion that the House of Lords should be moved outside London and separated from the House of Commons.

I agree very much with the noble Lord, Lord Stoneham, that a main fault of our parliamentary system as it works today is that the House of Lords is already too separate from the House of Commons. This would inevitably be made worse by moving the House to a separate location. I have always believed that the basic construct of our Parliament is a good one. The House of Commons is rightly the main battleground between the political parties, but its Members are understandably preoccupied by the need to get re-elected and by looking after the demands of their constituents, which are inevitably increasing these days. The fact is—and we are all aware of this—that the House of Commons does not give sufficient time to the scrutiny of legislation. The House of Lords, consisting of appointed people with a wide range of experience and expertise, is able to fill that gap, as well as being able, through our Select Committees, to provide well-informed and authoritative reports on issues of the day.

I agree with the noble Lord, Lord Norton, that, if our system works perfectly, the two Houses complement each other. It should be a dream partnership, but we all know that, sadly, in practice it does not work that way—although I contend that, beneath the surface, it works more effectively than is often recognised.

The starting point, which I know from long experience in the Civil Service, is that all Governments regard the whole of Parliament as an inconvenient but necessary fact of life. As far as the Executive are concerned, Parliament, like the courts, is an institution which prevents or makes it difficult for Governments to do some of the things that they want to. From the Executive’s point of view, Parliament has to be manoeuvred around, appeased, cajoled, persuaded or just driven. A Government with a good majority, reinforced by their extensive powers of patronage, generally get their measures through the House of Commons, but they cannot count on doing so in the House of Lords, where they have no overall majority. It is true that the Government can use their majority in the Commons to overturn amendments passed here, but, nevertheless, the House of Lords is an irritant to the Executive. On our side, there is also frustration. We in the House of Lords often feel that the Executive in the other place overturn our amendments without sufficient consideration and without much respect for the painstaking debate and discussion which has taken place here.

Yet below the surface, Parliament perhaps works better than even we who are Members of it perceive. It partly does so because of the easy and informal access that Members of this House have to Government Front-Benchers responsible for taking legislation through the House, and to the channels of communication that those Front-Benchers provide to the departments sponsoring legislation. I know from experience that the noble Lord, Lord True, is a good example of that. That is the means, rather than debate in the Chamber, whereby improvements to legislation are very often made. As others have said, we have valuable Joint Committees with the House of Commons and some joint pre-legislative scrutiny, although not as much as many of us would like.

Apart from the practical difficulties that would arise from putting the House of Lords in a different location from the House of Commons—and those have been well described today—the benefits of collocation often unseen by the general public would be lost to our parliamentary system if the House of Lords was moved to a different location.

Of course, our parliamentary system could work better; it needs improvement and some major reform. But I am convinced that the working of Parliament as a whole would be made worse, not better, by moving the Lords to a location different from the House of Commons. That, as the noble Lord, Lord Norton, said, is an important constitutional point. I do not believe that there will be sufficient advantage to the levelling-up agenda to offset that damage to our national life.