Consideration of Lords amendments

We come to Lords amendments to the Constitutional Reform and Governance Bill, which have been received and printed. A grouping is also available. Under the order of the House of yesterday they may be considered forthwith without any Question put. I draw the attention of the House to the fact that financial privileges are involved in Lords amendments 37, 41, 42, 44, 46, 48 and 67 to 69. If the House agrees to any of the amendments, I shall ensure that the appropriate entry is made in the J ournal.

The Secretary of State has tabled a manuscript amendment that is consequential to Lords amendment 20, which leaves out clause 57. Copies are available in the Vote Office. The amendment has been selected and placed in the group led by Lords amendment 16.

Clause 3

Management of the Civil Service

I beg to move, That this House
agrees with Lords amendment 1.

With this, it will be convenient to discuss Lords amendments 2 to 5, 34 to 38, 58, 67 to 70, 73 and 80.

It might be helpful if I begin by explaining to the House the conclusion that was reached in the other place last night. As colleagues of some antiquity will appreciate, the wash-up, by definition, inevitably involves a compression of the legislative process, and business can get through only by agreement. In their lordships' House, that agreement requires not only a majority vote but widespread consent across the Chamber. We were faced with a situation where a number of Back-Bench Members had tabled amendments to delete every single clause. As a consequence, we were faced with difficult but inevitable choices that involved discussions with those Members, party leaders and the leader of the Cross-Bench group to arrive at an accommodation.

It would have been better if the Secretary of State had initiated discussions with all those parties, rather than launching into an agreement with one party alone, which then came unstuck yesterday in the Lords.

The right hon. Gentleman is of even greater antiquity than me and he will know that there is a great deal of inter-party discussion all the time. For as long as he and I have been in the House, formal negotiations during the wash-up have taken place between the official Opposition and the Government of the day, but there was no suggestion whatsoever that the Liberal Democrats should be excluded from that process, and I do not believe that the conclusion would have been any different. We will come in due course to the removal of clauses in part 3 relating to a referendum on the voting system, and of clause 53 relating to the ending of by-elections for hereditary peers. We were in exactly the same place as the Liberal Democrats, but the official Opposition were not. The simple truth, which would have been the case had all three parties been formally in the room, is that during the wash-up, the Opposition have a veto. That is always the case-I was party to wash-ups when in opposition. It is straightforward. That is the reality and there is nothing one can do about it.

The choice we faced, which would have been the same for Mr. Grieve had he been in my seat, was that we should not make the best the enemy of the good. We would not have got any part of the Bill through had we not been able to reach an accommodation, and, because of external realities, I do not believe that the result would have been any different had there been earlier discussions. As hon. Members will know, we offered the Conservatives what I thought was a good way of squaring the circle in their opposition to the alternative vote and to Liberal Democrat and Government support for it. We said that we would introduce measures and were ready to table amendments that would subject that part of the Bill to an automatic sunset clause. The clause would have stayed on the statute book and, if within six months the Government of the day had taken no action, it would have fallen. If the Government had introduced affirmative resolutions in each House, the legislation would have come into force. We offered that to the Conservative party, but it decided for its own reasons that that was unacceptable.

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I will give way in a moment. We therefore had no alternative but to withdraw the provision, and I am not giving anything away if I say that we will undertake to reintroduce it as soon as we are re-elected, as I hope we shall be.

On referendums on reform, does the Minister for Justice accept that, historically, the Liberal Democrats-Lloyd George, for example-or indeed any other party were in favour of proportional representation when it suited them and went into reverse when it did not? At its heart, that has little to do with the sense of fairness that they try to generate and much more to do with whether they can secure political advantage at any given time.

May I bring to the House's attention an almost historic first for the hon. Gentleman, for whom I have great affection? This is the only occasion I can recall when he has not brought the European Union into an observation on any issue whatsoever.

But Europe has PR.

Indeed, Europe has PR too.

It is a matter of historical record that until late 1923 the Labour party was the third party, and was in favour of proportional representation. The Liberal party-as it then was-which was the first or second party, was in favour of first past the post. In 1924, Pauline conversions both ways took place. The Labour party suddenly decided that it saw every merit in first past the post, and the Liberals, who slipped into third position, where they have remained ever since, were suddenly in favour of proportional representation-interesting conversions! However, although the alternative vote is an improvement to the system we have, it is not proportional representation.

I greatly regret the fact that we have had to remove certain aspects of the Bill, particularly on the alternative vote and the removal of hereditary peers. To accommodate the Conservative party, we offered an arrangement by which all existing hereditaries would in addition be deemed life peers, and a provision whereby, on the death of a hereditary-cum-life peer, the leader of a party or group-this mainly applies to the Conservative party-would have a right to nominate a replacement. There was, therefore, no question of any gratuitous reduction in their numbers. That, however, was not considered acceptable.

Given the constraints on each party, I thank Mr. Grieve and his colleagues for the constructive discussions that were held, and place on record my appreciation of the co-operation of the leaders of the three parties, the Cross-Bench groups and a number of individuals-Members and peers-with whom I met and talked all through last night.

The first group of Lords amendments is on the public service. We got the civil service changes through, which was very important. Lord Norton of Louth tabled a series of amendments. I accepted amendment 1, and did my best to accept the others where possible. The amendment sets out that in managing the civil service,

"the Minister for the Civil Service shall have regard to the need to ensure that civil servants who advise Ministers are aware of the constitutional significance of Parliament and of the conventions governing the relationship between Parliament and Her Majesty's Government."

I told Lord Norton that I strongly support the amendment. He has found a wording that meets the need. A striking feature of my 35 years of contact with officials and of working in government in the '70s is that the number of officials who understand and appreciate what happens here has gone down. We have to reverse that, and the amendment is an important way of doing so.

Other changes remove chapter 3, on Civil Service Commissioners for Northern Ireland, and chapter 4 on Crown employment and nationality. I appreciate that there is some concern about that, but we could not achieve it.

Will the Minister explain whether "could not achieve it" means just that the Conservatives did not want it? As I understand it, the Minister said that a deal has to be done and they have a veto. Will he explain that in each case, because the public probably would want to know what the issue was?

The hon. and learned Member for Beaconsfield can speak for himself, but I have no information whatsoever that the official Opposition opposed the clauses.

Con: Indicated assent.

And he confirms that.

The other place is very different. It might be attached to this building, but in other respects it is a different planet, as I have discovered, and I was further educated all of yesterday and in the small hours of this morning. The parties can do whatever they want, and we agreed, but as there are no rules of order in the other place, which is absolutely remarkable, a number of people on both sides who were described to me as "mavericks"-I would not use such a pejorative word-could not be prevented from saying that they would dig in and would talk on the matter, and a whole series of other things, until 4 or 5 am. Unless we had a broad consensus on every single item by external negotiation, including with the outriders, we were not going to get anything through. That is the difficulty.

Lords amendments 67 to 70 are consequential on removing part 10. Amendment 73 is also consequential, and a further amendment removes the clauses relating to the national audit. I am very sorry, as I know everybody is, about having to remove the national audit provisions. I deeply regret that, but otherwise we would not have had any Bill at all. I pledge that we will bring the provisions back if we are re-elected.

I think that the Minister glossed over a bit because he went straight from Crown employment to later provisions. As a member of the Joint Committee on Human Rights, I am particularly interested in what happened to part 7. We thought we had a deal on demonstrations in the vicinity of Parliament, because it was not acceptable to leave in that provision. Again, I am interested to know whether it was the Conservatives-or a maverick who may or may not have been a Conservative-who required that to come out.

No, it was not the Conservatives. If the hon. Gentleman reads the debates, he will see that Lord Trefgarne in an opening speech said that he was willing only for certain provisions of the Bill to go through, and that otherwise he would filibuster it. He is a Conservative, but I do not suggest for one second that he is under the control of the Conservative Whips. Lord Stoddart was once a member of the Labour party, but has not been for many years, and he is certainly not under the control of the Labour Whips. They said that the only provisions that they were willing to accept were those relating to the civil service-chapter 1 of part 1-part 4, part 6, and the Baroness Gardner clause, clause 87. In the event, we were able to persuade those lordships and some others that other aspects of the Bill should also be included. The negotiation was, therefore, a relative success, and we shall come on to those aspects in a moment.

I thank the Secretary of State for his approach to the issue in the wash-up.

I start by providing some reassurance for Dr. Harris. The position is very clear. When the process started, the Secretary of State approached me and asked for my views and those of the official Opposition on what might remain in the Bill. We worked together very amicably to narrow the areas of difference. As I have no doubt that the Secretary of State will be willing to confirm, I pointed out to him at the outset that my own information coming down from the other place was that whatever we agreed would almost certainly not be sufficient to meet the objections of some of their lordships. I am, I hope, a parliamentarian as well as a politician and, as far as I am concerned, a perfectly valid case had been made. This is a constitutional Bill of sufficient importance that it had to be taken on the Floor of this House. In those circumstances, any hon. Member who criticises a Member of the House of Lords for obstructing a constitutional measure that their lordships were being asked to pass within a very small number of hours, without proper consideration, is on shaky ground. The fact is that their lordships were entitled to say that they did not want the Bill at all. I think that if a sufficient number of them had felt that that was the position, the Bill would have fallen in its entirety.

The Secretary of State and I-and, I suspect, everyone in this House-agree that some clauses are of such importance and so desirable that they should be put on the statute book before the election and that everything possible should be done to try to facilitate that. In fairness to Members of the other place, I should point out that it was clear that most of them accepted that some of the proposed reforms needed to be enacted. I am thinking particularly of those that deal with the Independent Parliamentary Standards Authority, with the treatment of non-domiciled peers and Members of the House of Commons and with the civil service-the latter largely non-contentious reform was hugely desired. We have all done our best to put this measure in reasonable order.

I am sorry if the hon. Member for Oxford, West and Abingdon is disappointed. I am disappointed about one or two things that have come out of the Bill, but I will certainly not say a word of criticism about the way in which it was handled at the other end of this building, because their lordships were fully entitled to take the view that they did.

May I say how glad I and, I am sure, many of my hon. Friends are to note that the provisions relating to the referendum on voting systems and electoral law have been disposed of? I regard that as a triumph and I am extremely glad to be able to congratulate my hon. and learned Friend on that.

I am most grateful to my hon. Friend. On that provision, I can probably take either the blame or the credit, but at any rate I think that I did have some part to play in ensuring its disappearance. If the hon. Member for Oxford, West and Abingdon is disappointed, that is just tough.

I do not want to take up too much of the House's time. These amendments are acceptable. I do not want to repeat all the arguments that the Secretary of State made. There is in effect only one new amendment, proposed by Lord Norton of Louth, which seems to us a substantial improvement and will helpfully clarify the role of the civil service and the need to respect Parliament in its work. We are happy to welcome that amendment. We obviously accept the amendments that delete certain aspects of the Bill, because we recognise that in view of the way in which the Bill has been handled and the fact that it has come to a premature end without full consideration, Members of the other place are fully entitled to adopt the view that they do not want the provisions to go on the statute book.

The way in which the Bill has been handled throughout has been catastrophic. The Government delayed the Committee stage in this House, randomly extended it and failed to secure the Bill in the House of Lords, for which they are entirely to blame. Especially on items such as the referendum clauses, the question that occurs to Opposition Members is: did the Government ever intend this to be anything but a political manoeuvre that would inevitably end in an announcement by the Prime Minister of one of his famous dividing lines, rather than a serious attempt to change the electoral system through a referendum? I very much doubt whether the Government were ever serious about that. That throws into grave doubt their seriousness about this issue. They made the promise in 1997 and they are making it again this year, and it has the same validity this year as it did then.

There is also a serious point about the relationship between this House and the other place. As Lord Campbell-Savours pointed out, the House of Lords was quite content to leave in the IPSA aspects of the Bill, because they concerned this House. Surely the same applies to the referendum clauses, which relate to the voting system for this House. I do not think that the way in which Members of the House of Commons are elected has anything to do with the House of Lords.

The other things that have gone from the Bill are equally catastrophic. The House of Lords reform aspects of the Bill throw into doubt the commitment of the whole of Parliament to the reform of Parliament and the return to high standards in public life. That is surely the most serious part, for the reputation of politics, of the wash-up process.

From the point of view of my party especially, the failure to reform the law on protests surrounding this place is catastrophic. The Prime Minister promised, virtually on his first day in office, to change the law, but he has failed to deliver.

I am glad that my hon. Friend makes that point, because other legislative vehicles that have received Royal Assent could have been used. The Government said, "Oh no. Don't worry. We have this Bill. That will do it. We have time." Then, because of the delay that my hon. Friend identified, they wilfully reneged on the promise to repeal the provision, which they could have introduced in another way, as we and the Joint Committee have argued.

That is a very good point. I noticed that yesterday the Crime and Security Bill went through the other place without having to be sent back to this place. That Bill could have been used for the same purpose, but was not. That is a catastrophe as well.

It seems to me that the process of wash-up is washed up. Front Benchers of the larger parties should reflect on the way in which they colluded, got it wrong and ended up with this disaster.

I resent the hon. Gentleman's implication. There was no collusion. I was asked for my opinion on what we might reasonably accept and I expressed a view, which I was entitled to do. Some of the things that have come out had nothing to do with me. The hon. Gentleman is a good parliamentarian as well. He will have to recognise what happens when the Bill process runs into the sand; that is, I suppose, the fault of the Government. I can assure him that it is not my fault. I do not know about blaming the Government. Far from our being taken by surprise by what happened in the other place, it was, as I said, entirely predictable. Indeed, I told the Secretary of State that I believed that it was exactly what would happen.

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Order. May I say to David Howarth that we do not want to enlarge the debate any further by going into such matters as he has just alluded to, because there are six groups of amendments yet to be reached and 37 minutes left?

Thank you, Mr. Deputy Speaker. I was tempted along that route by the Secretary of State's opening remarks, which were more general. I shall end this part of my remarks by saying that we were excluded from the process and therefore have no loyalty to it.

I regret that the amendments include the removal of the Crown employment nationality provisions. Mr. Dismore has worked for years to get those provisions this close to the statute book. He cannot be here today, but I am sure that he would express that regret himself were he present. He has support from hon. Members on both sides of the House, and I am sure that if Lords Trefgarne and Stoddart had understood anything about that aspect of the Bill, which they appear not to have done, they would have recognised its merit as well.

Again, the Government could have programmed the private Member's Bill concerned as a stand-alone Bill. The Government made a conscious decision not to provide time despite the fact that business has collapsed early day after day in the last few weeks-indeed, the last few months. Therefore, every one of these failures-Mr. Grieve is being too generous-can be laid at the door of a Government who do not care enough about some of the measures that they claim to want, because they could have dealt with them in another way.

My hon. Friend is entirely right. Do we have just another political manoeuvre, whereby the Government appear to be in favour of something without actually doing it? I regret wasting the time of a large number of hon. Members, which need not have happened.

I approve of other amendments in the group that bring in new material. The amendment moved by Lord Norton of Louth seems to be sensible-the loyalty of the civil service to the House as well as to the Government is important constitutionally. I am sure that the measure will have important long-term consequences; as a constitutional change, it strikes me as just as important as all the things that have been excluded from the Bill. Interestingly, their lordships thought that that change should be allowed .

The wash-up process in general leaves much about which to be dissatisfied and, one day, no doubt we shall turn our minds to that. Insufficient scrutiny even of the parts of the Bill that remain leaves much about which to be dissatisfied-major amendments to the civil service provisions were tabled but were never reached here or in the other place, yet one stray amendment has now found its way in. The amendment is sensible, but we never had a chance to look at all the other ones, which we could have discussed and might also have been sensible.

I am interested in the hon. Gentleman's comments about the wash-up process being unsatisfactory. I am happy to talk to him informally at some point about how the process could be improved, but the stark reality is that we could argue for no wash-up at all: if legislation hits the buffers at the end of a Parliament, it should fall because it cannot be properly scrutinised. However, we would then lose the benefit of some important parts of the Bill that have been preserved.

The hon. and learned Gentleman anticipates my later remarks-the case for fresh thinking about what happens at the end of a Parliament. Should things endure at all, or should they simply fall and have to start again? The case for that is strong, and we have an obligation to review this period, because none of us feels happy about the outcome. I regret the loss of parts of the Bill that would have been valuable but, having said that, my main remarks are directed at the pleasure of having rescued the civil service provisions, for which some of us have been arguing for an awfully long time.

The Committee that I chair has reported endlessly on the civil service issue. In frustration, at one point we even drafted our own Bill-the first time that a Select Committee had done that, certainly in the modern period-but I had almost given up hope. The proposition was first advanced by Northcote and Trevelyan in the middle of the 19th century, so to be enacting it at the end of the first decade of the 21st century suggests that we have not been too premature in advancing the cause. However, we have got there, and we got there because we had what we did not have before. The change was previously held up by, first, the lack of political will and, secondly, a fear that it could not be done without provoking political disagreements. I speak with sincerity not only to my right hon. Friend the Secretary of State but to the Opposition that agreement was required for the change to happen. It has happened unsatisfactorily in many respects, but it has happened.

When the current electoral excitements abate, putting the civil service on the statutory footing that it ought to have been on for a long time and enshrining its values in legislation will be seen as a not-insignificant constitutional moment, widely welcomed by the civil service. I congratulate those who have enabled it to happen.

I understand Liberal Democrat concerns about reform of the voting and electoral systems. I have already made my position clear, and I am sure that many other people throughout the country, as well as on our Benches, would concur with dispensing with those provisions-I congratulate my hon. and learned Friend Mr. Grieve on his efforts.

A number of other matters occur to me as we look at the final stages of the Bill. I very much agree with the sentiments expressed by Dr. Wright, because he and I and a number of others have worked extremely diligently on reform of the House. I agree that the wash-up process needs to be looked at properly for the future. Some of what was done-for example, with the Finance Bill-struck me as not a good way to legislate: not one Member of the governing party attended debate on the Finance Bill, except perhaps one who came in for only a few minutes. As I said, the birds have flown but people who are about to vote in the general election are saddled with the consequences of the taxation and public expenditure implications of the Finance Bill. Therefore, the wash-up raises many issues.

The Wright Committee proposals-other than those on the chairmanship and membership of Select Committees-have effectively been ditched and betrayed. They could have been included in the Bill.

Does the hon. Gentleman foresee that when a distinguished Committee-chaired by someone perhaps not as talented as Dr. Wright-comes to a set of conclusions at an equivalent time in the next Parliament, we shall discover that the necessary motions to implement those conclusions were lost in the wash-up?

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Order. I do not want to be seen as picking on Mr. Cash unduly, because the debate has been very wide ranging-it started with an expansive speech by the Secretary of State, so I understand the temptation to comment. However, I have a duty to the House to keep within the rules of order. Specific groups are down for debate, so it would be helpful in making some progress if hon. Members respected that fact.

I shall gladly follow that suggestion, Mr. Deputy Speaker. I refer in particular, therefore, to the civil service reforms. One or two things were not included-for example, it is a great pity that the rules relating to evidence before Select Committees have not been tackled. They might be more a matter of convention and of Standing Orders, but when we require civil servants to carry out their duties with integrity, honesty, objectivity and impartiality, the fact that special advisers are not required to carry out their duties with objectivity or impartiality is relevant. That might be a statement of the obvious, but sometimes special advisers and their political functions create difficulties. Similarly, in the House, although we engage in political activities, as part of our duties we must deal with some matters with a degree of objectivity and impartiality; that is no less the case for special advisers, because questions of integrity, honesty, objectivity and impartiality all rather tend to merge into one another. It is a pity that some matters have been differentiated in that way.

No one in the debate has dwelt on the question of the House of Lords. I simply say, "Here we go again." I commented on the questions of proportional representation, the alternative vote and electoral reform. I accept what the Secretary of State said about alternative votes not being the same as proportional representation in a precise sense, but all such questions are to do with fiddling with the mechanism and the feeling of the choice of the person who goes into a polling booth-or does not do so-to exercise his freedom of choice. Playing around with that is very dangerous and the reason for retaining the existing system is inviolate; it should be kept. It is about the essence of an individual's choice and that should not be reallocated according to a system of shuffling.

My party has been committed to the idea of an elected House of Lords, although I notice that those issues have now been put on the back burner. We have been talking about the matter since the mid-19th century; a certain relation of mine by the name of John Bright was calling for the abolition of the House of Lords even in those days. I am not sure that I would call for its abolition, because it does a fantastically good job, but I have serious doubts about whether it can continue without being elected. I am sorry that the relevant provisions have gone. I have no doubt that the mavericks who were referred to earlier were among those who were determined to maintain the House of Lords in its present state-much as I want to pay tribute to the incredibly hard work that it did. When I was in the shadow Cabinet I found that those people did amazing amounts of hard work. However, the question is about more than that: it is a matter of principle.

On the subject of treaties, I do not think that clause 24 should be exclusively devoted to the question of ratification. Consent is the issue and therefore the clause should be about treaties being laid before Parliament before consent. It is consent that really matters, and ratification is a much more complex question, which I do not intend to go into now, although I took up the issue when I took the Foreign Secretary to judicial review over ratification of the Lisbon treaty, so I feel strongly about it.

The general point on which I want to conclude is that there is far too much government, and the Bill retains far too much of the presidential nature of the direction in which our governmental system is going. The Bill deals with important matters, but there is a need for much deeper radical reform of the connection between the Government, Parliament and the voter than it contains. I would not want to dismiss it, but it does not grapple with the real question at the heart of what the hon. Member for Cannock Chase, as Chairman of the Select Committee on Reform of the House of Commons, and the significant number of hon. Members on both sides of the House who are here first as parliamentarians, know is going wrong: the disconnection between Parliament and the people on the question not just of allowances, but of the manner in which the Government impose their will. I spoke about that in the debate on the effectiveness of Parliament in Westminster Hall yesterday. The Bill does not deal properly with those questions and we must amend the Standing Orders to restrain the extent to which the Government have control over what happens. The Back-Bench and House Committees, and the reassertion of the rights of Back Benchers-

Order. I am reluctant at heart to have to interrupt the hon. Gentleman again, but he is allowing himself to get away from my strictures.

I am glad to take note of that point, Mr. Deputy Speaker, and I shall not transgress again, but I wanted to get that on the record.

I feel strongly that we are moving into a new phase of politics, with all the Facebooks, Twitters and the rest. The question of disconnection remains important, but I congratulate my hon. and learned Friend the Member for Beaconsfield on the extent to which we have made progress in removing some of the more objectionable things from the Bill. I just do not think that that has gone far enough.

With the leave of the House, I would like to thank all hon. Members for their observations and to speak briefly in tribute to my hon. Friend Dr. Wright. This will be his last day in this House. He has been a paradigm of the best of the Members of this House who have shown that it is possible, by assiduity and imagination, to be profoundly influential from the Back Benches, on either side. Much of his work, particularly in chairing the Public Administration Committee, is reflected in the Bill and in other legislation. He will recall, as I do, an extraordinary evening more than 10 years ago at the Report stage of the Freedom of Information Act 2000, when he and I and many others had an open discussion that resulted in a much improved Act.

My hon. Friend made an important observation, which I accept, about the unsatisfactory nature of the wash-up process. There is not much that he can do about the fact that the process will be compressed, but yesterday in the other place my noble Friend Lord Rooker said that

"there would be a case for institutionalising that this House-jointly preferably...-should systematically say that an ad hoc committee of the House should look and monitor the wash-up package after six months and 18 months." -[ Hansard, House of Lords, 7 April 2010; Vol. 718, c. 1483.]

He made other, further suggestions about that. My noble Friend Lord Bach endorsed that from the Front Bench, and I endorse it too. I hope that that has the approbation of the other parties and that we shall look carefully at how the wash-up has happened, and the improvements we can make.

Lords amendment 1 agreed to.

Lords amendments 2 to 5 agreed to.

After Clause 27