Programme motion, Committee stage in the Commons
- Speaker
David Howarth (Cambridge) (LD)Liberal Democrat- Quote
- I beg to move amendment 12, page 1, line 13, leave out paragraph (c). Clause 1 simply relates to the scope of the civil service part of the Bill, following on from the draft Civil Service Bill in 2004 and the draft of this Bill in 2008. The first question that arises from our amendment is whether the Bill should apply to GCHQ. The Bill excludes the coverage of all the security services, the Secret Intelligence Service, the Security Service and GCHQ, but, in the case of the latter in particular, there is a history that suggests that the Government, at least, have not always been of the opinion that GCHQ should be excluded. In the 2004 consultation on the draft Civil Service Bill, the Government said that there were no obstacles to including GCHQ within the scope of the statutory basis of the civil service. They then said: “The Government has no objection in principle to having civil servants who work in the field of intelligence covered by the draft Bill. Because there is no operational impediment to their inclusion, GCHQ staff will be within scope of all the provisions of the draft Bill.” But, in the 2008 draft Constitutional Renewal Bill, GCHQ was quietly removed, and the Bill before the House today retains that position. From what the Government have said to the various Committees that have discussed the Bill before us, I gather that their justification for excising GCHQ from this legislation is that GCHQ should be treated “in the same way as the other Security and Intelligence Agencies.” The trouble is that that was not the thinking in 2004, when the Government were prepared to treat GCHQ differently, and it is far from clear why the change of policy has occurred. During the Public Administration Committee’s investigation of the Bill, the First Civil Service Commissioner expressed concern about the exclusion of GCHQ employees, especially about the fact that they would neither have the right to be appointed on merit nor be able to access any statutory complaints procedure. The Government, in reply to those concerns, merely said that “appointments to GCHQ will, as a general rule, continue to be made on merit,” which implies that some appointments to GCHQ will not be made on merit. Given the extraordinary level of technical skill and knowledge that is required to work at that agency, it seems extraordinary that anyone could ever be appointed to work there except on merit. The amendment would change the 2004 proposal, which has not been properly justified and, in terms of the employees themselves and other regulatory aspects of the civil service, is not justified. I ask the Government to correct this omission at this stage of the Bill’s proceedings.
- Time
- 18:34
- Source
- View in Hansard ↗
- Speaker
Mr. Francis Maude (Horsham) (Con)Conservative- Quote
- We have tabled new clause 33, which has been grouped with the amendment.
- Time
- 18:34
- Source
- View in Hansard ↗
- Speaker
The Chairman of Ways and Means (Sir Alan Haselhurst)Conservative- Quote
- Order. Is the right hon. Gentleman leaping ahead? At the moment, we are on amendment 12, and new clause 33 is in the next group.
- Time
- 18:34
- Source
- View in Hansard ↗
- Speaker
Mr. Oliver Heald (North-East Hertfordshire) (Con)Conservative- Quote
- I am concerned about the exclusion of GCHQ from the definition of what is a civil servant for the purposes of this part of the Bill. It is hard to see why GCHQ employees should not be covered by such provisions. Why should GCHQ not be managed by the Minister but by a civil service employer? Why should there not be a code of conduct that requires integrity, honesty, objectivity and impartiality? Why should the Civil Service Commission be unable to set appointment rules that mean that appointments are on merit? Why should an employee who feels that he is being asked to do something that is in breach of the code of conduct be unable to go to the commissioners and ask for redress? It seems odd that the Government would want to exclude that particular institution from the Bill. I can understand that slightly different considerations apply to the Secret Intelligence Service—MI6—because it has its own statutes that provide similar protections, and it might seem inappropriate to want to legislate to repeal completely those provisions, which are presumably, for these purposes, adequate. However, GCHQ is not in the same position, as the Government recognised in 2004. What has changed that makes the Government suddenly feel that GCHQ must be treated differently from the rest of the civil service? I am sure that if somebody who works there was asked, “Who do you work for?”, they would say either the Ministry of Defence or the civil service; they would not want to call themselves employees of anything else. Given that it is logical that GCHQ should be covered by the Bill and given that there is no real reason why the prerogative powers should be used instead of management being exercised under this legislation, I would be therefore be interested to hear the Minister’s explanation. I am worried that this may be one of those cases that we get from time to time when Ministers and civil servants say, “We don’t want to fetter GCHQ in any way”, and that what is proposed is just the product of a defensive approach that is against the spirit of the age, which is to be as transparent as possible. In that case, I believe that there is no real reason why the amendment should not succeed.
- Time
- 18:34
- Source
- View in Hansard ↗
- Speaker
Dr. Tony Wright (Cannock Chase) (Lab)Labour- Quote
- I want briefly to add my questions to those that have been asked. I have not heard an explanation as to why GCHQ was to be included in these provisions back in 2004 and why it is now excluded; I do not know what thought process or consultation has produced that change. I do not know why it would be thought appropriate that promotion on merit would not apply to the employees of GCHQ. I do not know why it would be thought that it was not appropriate for those employees to have the right to appeal to the civil service commissioners. I do not know whether the staff who work at GCHQ have been asked where they would like to sit. There may be good reasons for those exclusions, but none has yet been produced, so I anticipate the Minister’s answers to those questions.
- Time
- 18:34
- Source
- View in Hansard ↗
- Speaker
- Mr. HealdConservative
- Quote
- I am grateful to the hon. Gentleman for giving way. Does he share my concern that this may be another case of, “Let’s be neat and tidy and keep all the secret bits together”, ignoring the fact that the two secret services have their own Acts of Parliament with similar provisions to those in the Bill? It is completely wrong to look at it in that way, because it is not neat and tidy.
- Time
- 18:34
- Source
- View in Hansard ↗
- Speaker
- Dr. WrightLabour
- Quote
- I was not giving way to the hon. Gentleman; in fact, I had concluded my remarks. However, I think that we are all asking more or less the same questions and looking forward to the same answers.
- Time
- 18:34
- Source
- View in Hansard ↗
- Speaker
Martin Horwood (Cheltenham) (LD)Liberal Democrat- Quote
- I was recently privileged publicly to welcome Her Majesty the Queen to GCHQ, along with the mayor of Cheltenham. I would not like to inflate my own importance in that, given that the mayor and I were almost the only people present who could be publicly photographed. During that visit, I jokingly asked whether Her Majesty needed security clearance, and was told, I think equally in jest, that she did not, because by definition GCHQ was almost part of her household. Although that might have been said in jest, it highlights the anomalous position in which the secret agencies find themselves, which was identified by the Joint Committee on the draft Constitutional Renewal Bill.
- Time
- 18:34
- Source
- View in Hansard ↗
- Speaker
Mr. David Winnick (Walsall, North) (Lab)Labour- Quote
- rose—
- Time
- 18:45
- Source
- View in Hansard ↗
- Speaker
- Martin HorwoodLiberal Democrat
- Quote
- I was about to conclude, but I happily give way.
- Time
- 18:45
- Source
- View in Hansard ↗
- Speaker
- Mr. WinnickLabour
- Quote
- On 25 January 1984, the House was notified by the then Foreign Secretary that the right of GCHQ employees to belong to a trade union was being taken away. From then until 1997, Labour Back Benchers, and Labour Front Benchers as well, constantly argued that that right should be restored, which it has been, as the hon. Gentleman said.
- Time
- 18:45
- Source
- View in Hansard ↗
- Speaker
- Martin HorwoodLiberal Democrat
- Quote
- I think that that is broadly what I said. The Conservative Government’s actions at that time damaged morale in the intelligence services considerably and, if anything, weakened national security instead of strengthening it. The Government should take pride in their attention to the proper employment rights of civil servants at GCHQ and give active consideration to the amendment, which seeks only to do the same thing.
- Time
- 18:45
- Source
- View in Hansard ↗
- Speaker
Mike Penning (Hemel Hempstead) (Con)Conservative- Quote
- Can the Minister clarify whether GCHQ is now being considered in the same way as the other intelligence services? As we have heard, that has been sought for some time. Its inclusion in this part of the Bill would be a clear indication that the Government have looked again at how it is seen in the context of the intelligence services. What exactly is GCHQ’s position? It looks as though there has been a turnaround, or change, in Government policy with the result that GCHQ is now linked with the other two intelligence services; otherwise, I cannot think why it is included in the exclusions listed Bill. Can the Minister clarify what will happen to civil servants who have been seconded to GCHQ from other Departments or agencies? Will they be protected in any way? They obviously have to sign the relevant documentation and the Official Secrets Act, but there are civil servants who are seconded to GCHQ from other Departments and other agencies around the world. What will be their position? Will they be covered by the Bill?
- Time
- 18:45
- Source
- View in Hansard ↗
- Speaker
- David HowarthLiberal Democrat
- Quote
- But is not the point that there is no statutory basis for those promises, whereas there is for staff in the other services in the legislation that she mentioned?
- Time
- 18:45
- Source
- View in Hansard ↗
- Speaker
- Mr. HealdConservative
- Quote
- rose—
- Time
- 18:45
- Source
- View in Hansard ↗
- Speaker
- Mike PenningConservative
- Quote
- rose—
- Time
- 18:45
- Source
- View in Hansard ↗
- Speaker
- Mr. HealdConservative
- Quote
- Does not the right hon. Lady understand that the whole purpose of part 1 of the Bill is to put on a statutory basis the protections that civil servants have had? It is not good enough for her to say, “I am making an assurance”, because the whole purpose of part 1 is to put things into law, not have them on the basis of assurance. I do not know whether she has understood that, but it is what the whole campaign for a civil service Bill has been about.
- Time
- 18:45
- Source
- View in Hansard ↗
- Speaker
- Mike PenningConservative
- Quote
- My hon. Friend the Member for North-East Hertfordshire (Mr. Heald) is exactly right. Part 1 sets out the protection to be given to civil servants. If the Minister can give assurances to the Committee and to civil servants, why are they not in the Bill? That is what part 1 is all about.
- Time
- 18:45
- Source
- View in Hansard ↗
- Speaker
Mr. Gordon Prentice (Pendle) (Lab)Labour- Quote
- Under what circumstances would appointments at GCHQ not be made on merit?
- Time
- 18:45
- Source
- View in Hansard ↗
- Speaker
- David HowarthLiberal Democrat
- Quote
- I was hoping that the Minister would provide an answer to the question that we have all been asking, which is why the Government have changed their stance since 2004. We have not received any explanation of that at all. I was also hoping that she might be able to provide chapter and verse about the statutory protection of GCHQ staff that would put them on the basis that the Bill offers to other civil servants. She was not able to do that, either. It seems to me that the Minister’s only argument is that she is offering assurances from the Dispatch Box, but they are exactly the sort of assurances that would apply were the whole civil service still to be established merely on the basis of the royal prerogative. They seem to me simply a repetition of what is in the Bill.
- Time
- 18:45
- Source
- View in Hansard ↗
- Speaker
- Mike PenningConservative
- Quote
- Can the hon. Gentleman give us a clue as to why the Minister would not indicate what the exceptional circumstances would be in which someone was not promoted on merit? Why does he believe she did not let the Committee know that?
- Time
- 18:45
- Source
- View in Hansard ↗
- Speaker
- David HowarthLiberal Democrat
- Quote
- I do not know, and that point is by far the strongest case for the amendment that has been established in the debate. Appointments to positions at GCHQ must be on merit, because they are technical jobs. What does it mean for an appointment not to be made on merit?
- Time
- 18:45
- Source
- View in Hansard ↗
- Speaker
Sir Alan Beith (Berwick-upon-Tweed) (LD)Liberal Democrat- Quote
- Will my hon. Friend give way?
- Time
- 18:45
- Source
- View in Hansard ↗
- Speaker
- David HowarthLiberal Democrat
- Quote
- I shall attempt to answer the question, and then my right hon. Friend might provide a better answer. It seems to me that an appointment not on merit would be an appointment on political grounds, and I cannot see under what circumstances there could be an appointment to GCHQ on political grounds. My right hon. Friend might enlighten us.
- Time
- 18:45
- Source
- View in Hansard ↗
- Speaker
- Sir Alan BeithLiberal Democrat
- Quote
- I was going to put it to my hon. Friend that I was as baffled by the Minister’s reply as he was. I am looking around the Chamber, and I believe that it happens that I have spent more time than anybody else who is in their place inside GCHQ talking to people there about precisely what they do. I have never met anybody there at any level who did not appear to have been appointed on merit.
- Time
- 18:45
- Source
- View in Hansard ↗
- Speaker
- David HowarthLiberal Democrat
- Quote
- I am sure that that is the case, so why the Government desire to have this loophole is entirely mysterious to me. Because of that, I wish to press the amendment to a vote. Question put, That the amendment be made.
- Time
- 18:45
- Source
- View in Hansard ↗
- Speaker
- David HowarthLiberal Democrat
- Quote
- I beg to move amendment 10, in clause 1, page 2, line 21, at end add— (5) (a) Within two months of this section coming into force, the Minister for the Civil Service shall issue a list of all bodies and organisations that are to be treated for the purposes of this Act as part of the Civil Service. (b) The Minister for the Civil Service shall from time to time review the list referred to in (a) and shall issue an amended list if he believes it appropriate to do so.’.
- Time
- 18:45
- Source
- View in Hansard ↗
- Speaker
- The ChairmanConservative
- Quote
- With this it will be convenient to discuss the following: New clause 33—Civil Service annual report— ‘(1) The Minister for the Civil Service must publish and lay before Parliament an annual report on the functioning of the civil service of the state. (2) The Minister for the Civil Service may publish separate reports covering civil servants who serve the Scottish Executive or the Welsh Assembly. Before publishing these separate reports the Minister must consult the First Minister for Scotland or the First Minister for Wales (as the case may be). (3) Such a report must include but is not limited to— (a) details on the numbers of civil servants by each government department and agency; (b) the costs of civil servants by each government department and agency; (c) a comprehensive definition of the civil service of the state for that year. (4) The First Minister for Scotland must lay before the Scottish Parliament any report under subsection (2) that covers civil servants that serve the Scottish Executive. (5) The First Minister for Wales must lay before the National Assembly for Wales any report under subsection (2) that covers civil servants that serve the Welsh Assembly Government.’. Clause 1 stand part. The Committee will know that the list of amendments selected is provisional. Having had time to reflect on the matter, I thought that it might be for the convenience of the Committee if I included clause 1 stand part in this grouping, as the remarks that I sense hon. Members may wish to make would not then be restricted.
- Time
- 18:45
- Source
- View in Hansard ↗
- Speaker
- David HowarthLiberal Democrat
- Quote
- A central issue in this Bill is the question: to whom does it apply? Who counts as a civil servant? There has been debate for many years on the merits of a civil service Bill, and about the importance of giving statutory protection to civil servants, so that they do not rely simply on the good will of the Government of the day in important aspects of their working lives. Obviously, once one accepts the principle of statutory protection for civil servants, the question of who counts as a civil servant becomes very important. In this Bill, the Government have simply not attempted any definition, or even any description, of what counts as the civil service. The Minister may be able to point me to a part of the Bill where I can find such a definition, but I have not been able to find it. Clause 1(1) simply states that: “this Chapter applies to the civil service of the State.” It makes no further attempt to say what that means. In contrast, in the Government’s consultation on the 2004 Bill, they said: “Because there is no satisfactory, authoritative and comprehensive definition of the term ‘Civil Service’, in order to achieve the necessary clarity and certainty about coverage, the draft Bill proposes that there should be a comprehensive listing of every part of the Civil Service to which the Bill is to apply.” Then, the Government accepted the fact that it is difficult to define the civil service in abstract terms, so the solution was to list in the Bill the organisations and bodies that would count as part of the civil service for the purposes of the Bill. The 2004 Bill included that list in a schedule. That is an important list, because it includes organisations that, if the only definition in the Bill was “the civil service of the State”, could be defined as being in or out of the civil service.
- Time
- 18:45
- Source
- View in Hansard ↗
- Speaker
- Mr. HealdConservative
- Quote
- Many of the bodies that the hon. Gentleman mentions, over which questions as to whether they are part of the civil service may arise, perform functions that can be controversial—such as regulators or the Health and Safety Executive. It is all the more important that it should be clear whether civil servants working in those organisations will have the protection of the Act, and can make complaints if an attempt is made to interfere with a controversial decision.
- Time
- 19:15
- Source
- View in Hansard ↗
- Speaker
- David HowarthLiberal Democrat
- Quote
- That is an important aspect of the question. Are civil servants protected from improper pressure, for example? Do they have the protection of the code? If they do not, what is their protection? The hon. Gentleman is right. Many of the bodies concerned are charged with making judgments with which the Government of the day might not agree, which makes it even more important for us to know whether they are covered. On amendment 10, I hope that the Government can provide a better explanation of their position than they did on the previous amendment. I shall not comment now on new clause 33, which has been grouped with my amendment, except to say that we agree, of course, with the part of it that demands that the Government tell us who counts as a civil servant.
- Time
- 19:15
- Source
- View in Hansard ↗
- Speaker
- Mr. MaudeConservative
- Quote
- I apologise, Sir Alan, for being a little previous in attempting to intervene during the last grouping. I have worked out that I last led for my party during the Committee stage of a Bill in 1992—so perhaps I am a little rusty. However, I hope that I shall get the hang of it before long. The Conservative party supports the proposal in amendment 10, but new clause 33, which stands in my name and in those of my hon. Friends, goes further. The Bill has been in gestation for 150 years: it has taken a long time to get here. It does some very good things, and we support its purpose of putting the civil service on to a statutory basis—but it is deeply eccentric that after 150 years, we have a Bill to put the civil service on to a statutory basis that does not say what the civil service is. This is a moveable feast—and one that is broadly at the discretion of the Government. It seems to be almost at the whim of the Government, too. I am always astonished that if a Member of Parliament puts down a parliamentary question to the Cabinet Office about civil service numbers, answer comes there none. The question is referred to the Office for National Statistics, as if the number of civil servants were an external phenomenon that the Government tried to track out of interest, but they had no concept of its being a crucial management tool. In truth, at this stage, it is a management tool of considerable bearing on reducing Britain’s ballooning budget deficit. The fact is that the numbers of civil servants have varied enormously. The Government claim that they have reduced the size of the civil service. They claim to have “achieved 86,700 work force reductions” as part of the Gershon programme. Civil service employment was 522,000 in 2008. I accept that that was down from the 2004 peak of 570,000, but it was still higher than the 516,000 level of 1997. The recent fall is deceptive. There has been a significant expansion in the size of the quango state, which is not shown up in civil service head-count figures, and there has been a growth in the number of quangos classified as public corporations, rather than as part of the civil service. In 1996, 89 such bodies were classified as public corporations, but by 2008 that number had doubled to 178. Staff in public corporations are generally not classified as civil service employees for civil service head-count purposes. No fewer than 568,000 staff are now employed by public corporations, compared with 525,000 civil service employees. Mysteriously, only 31,000 of those public corporation staff are included in the civil service head count. There has also been a shift of bodies from the civil service into public corporations. For example, the Forensic Science Service became a Government-owned company in 2005 and was transferred out of the Home Office, so was no longer counted in civil service head counts.
- Time
- 19:15
- Source
- View in Hansard ↗
- Speaker
- Mr. HealdConservative
- Quote
- My right hon. Friend will have seen that part 1 of the Bill sets up, as a body corporate, the Civil Service Commission. Will the people who work there be civil servants?
- Time
- 19:15
- Source
- View in Hansard ↗
- Speaker
- Mr. MaudeConservative
- Quote
- I look forward with interest to the Minister’s response to that question—[Interruption.] She is looking anxiously to the civil servants Box for advice on that important matter—so at least it should come from the horse’s mouth. Executive non-departmental public bodies, with the exception of three Crown NDPBs, are not counted within civil service head counts, and regional development agencies are not deemed to be part of the civil service either. In the last year for which there are numbers, there were more than 200,000 NDPB employees. Furthermore, a series of what are effectively public bodies are not deemed to be part of the public sector at all—the Carbon Trust, Envirowise, the Energy Saving Trust, Network Rail and UK Financial Investments Ltd are not counted as civil service, central Government or even the public sector, yet all are funded by the Government. Of crucial importance, at a time when it is enormously important for the health of the country that the Government can, in the years to come, get more for less, given the pressing demands of the budget deficit, is the fact that the growth in the number of employees has been accompanied, sadly, by a productivity decline. The ONS’s own figures show that between 1999 to 2006 there was an average fall of 0.7 per cent. per year in education productivity and a decrease of 2.1 per cent. per year in social care productivity, and that between 2001 and 2005 there was a decrease of 2 per cent. in health care productivity. We would like a more transparent and efficient civil service that is a better place in which to work. Many extremely capable people, imbued with a public service ethos—we value that enormously—work in the civil service, but morale is very low. That is partly the result of a lack of transparency, efficiency and productivity. Public accountability is crucial, which is why we think that there should be a civil service annual report clearly laying out the definition of the civil service. That is what new clause 33 would achieve. We support amendment 10, which was moved by the hon. Member for Cambridge (David Howarth), but if that does not proceed to a vote, we will want a Division on new clause 33 at a later stage. It is important for there to be a proper definition of the civil service, and for the numbers and costs associated with civil servants, in each Department and agency, to be laid out. The civil service has been waiting since, I think, 1854—not the current crowd of civil servants, clearly—for a civil service Bill, and it would be almost an insult were this eventual enshrinement in statute to be without any attempt to define it. It would then remain in the gift of the Government to decide arbitrarily and at whim who is to be covered. We therefore wish there to be the possibility of a Division on new clause 33, if amendment 10 does not proceed to a vote.
- Time
- 19:15
- Source
- View in Hansard ↗
- Speaker
Dr. Alan Whitehead (Southampton, Test) (Lab)Labour- Quote
- I want to address the narrow point about the precise definition of a civil servant in clause 1(1). As hon. Members have pointed out, that subsection states that “this Chapter applies to the civil service of the State.” Clause 1(4) says: “In this Chapter references to the civil service…are to the civil service of the State”. It then excludes the parts mentioned in subsections (2) and (3) that we have discussed already. If we then seek further guidance by going, as one normally would, to the definitions in the Bill, we find, in clause 18, the following definitions: “In this Chapter…‘civil servant’ is read as stated in section 1(4)”, and “civil service” is read as stated in section 1(4)”. We are therefore returned to the start, rather in the manner of one of those telephone calls when someone tries to get through to pay their electricity bill, but is returned to the number that they first dialled, without any satisfaction of their complaint. It is not just that the Bill apparently contains no extensive definition, but that such definitions as it does contain are completely circular.
- Time
- 19:15
- Source
- View in Hansard ↗
- Speaker
The Temporary Chairman (Sir Nicholas Winterton)Conservative- Quote
- Order. Before I call the next speaker, may I remind the Committee of the decision taken by the Chairman of Ways and Means to include the clause stand part debate in the debate on the group headed by amendment 10?
- Time
- 19:30
- Source
- View in Hansard ↗
- Speaker
Mr. Andrew Tyrie (Chichester) (Con)Non-affiliated- Quote
- I am grateful for that ruling, because some of my remarks will range more widely than those that we have heard hitherto. I agree with everything that I have just heard, in a typically thoughtful and interesting speech from the hon. Member for Southampton, Test (Dr. Whitehead). When Lord Falconer described the Bill in his evidence to the Joint Committee not as a constitutional reform or renewal Bill, but as a “Constitutional Retreat Bill”, he was basically correct. The radicalism of the early prime ministerial statement in 2007 has been virtually entirely lost in this legislation. The removal of the clauses on the Attorney-General, among many other things that have been referred to today, is a reflection of that. However, Lord Falconer was wrong about one thing: civil service reform, as embodied in clause 1. The clause applies part 1 of the Bill to the civil service of the state, on which new clause 33 would give us an annual report. Clause 1 is radical, but in a curious way: it is a triumph for the status quo. Indeed, in places it even offers the possibility of restoring the status quo ante for the civil service. The clause entrenches the principle of an independent, impartial and permanent civil service recruited on merit. In doing that, we need to recognise that, by comparison with the civil services of many other major democracies, we are at one extreme in our levels of impartiality and impermanence. It is on such issues that I am at my most conservative, and I welcome this triumph of the status quo. We have had—and to a large degree we still have—a civil service that works. The history books suggest that since Northcote-Trevelyan dealt a blow to patronage, we have been well served by the people who have come into the civil service, and we are still well served. Anybody who has worked there will know the sense of duty, commitment and loyalty that the civil service can show to the Government of the day. There is still such a thing in this country as a public service ethos, and the best of them in Whitehall have it in bucketfuls. If clause 1 makes a contribution to reaffirming that ethos, the Bill will have been worth while. The civil service is an important pillar of our constitution. This legislation will strengthen that pillar, if only a little. In this triumph of what I have described as the status quo, we need to realise that we are setting aside many other approaches to the relationship between elected Ministers and, on the one hand, Parliament and, on the other, the appointed civil service. One of those approaches, which has often been discussed, would be to make the civil service more directly accountable to Parliament, as the Institute for Public Policy Research has suggested. Another approach, favoured by the think-tank Reform, would be to give Ministers more say over the direction of the permanent civil service establishment. That would take us in the direction of the United States. A third approach would be to keep most of the civil service as it is, but to superimpose at the top a cabinet system in each Department. I will not linger on those approaches, except perhaps briefly on the third one. My guess is that one reason that support for civil service legislation has gathered pace in many quarters, especially in Whitehall itself, is that we have, de facto, tried the cabinet system over the past decade and, having tried it, found it wanting. I wonder whether that is why Lord Butler, among others, changed sides on this issue. He was a former opponent of a civil service Bill; now he is a supporter. When people refer to the growth of presidentialism under Tony Blair, what they mean is the growth of a cabinet of advisers, largely temporary and party political, right at the heart of No. 10 and No. 11. Their position was reinforced by Orders in Council in 1997, giving advisers direct authority over civil servants. That was a profound mistake that has rightly been reversed. Cabinets should not be allowed to become part of our political culture. The bypassing of the civil service that came with that, and the impact of sofa government, were both disastrous for us. Clause 1 and its companions do not guarantee that that will not happen again, but they send a clear legislative signal that that is not how our civil service should operate. That is why I said earlier that this chapter of the Bill will entrench not only the status quo but, to some degree, a status quo ante. When I was in Whitehall, I was not a supporter of proposals for a civil service Bill. I thought that such legislation would be a waste of parliamentary time. However, I then sat on these Benches in the early years of the Blair Administration watching the new Labour Government bypassing officials and prejudicing the ability of the civil service to offer impartial advice to the Government, and that led me to conclude that we might need legislation to protect the civil service from the new culture of advisers and to signal Parliament’s support for the ethos of public service set out in the civil service code of conduct, which had recently been improved prior to the arrival of the Blair Administration. This part of the Bill lays the ground on which a proper relationship between the civil service and politicians can be maintained for the future. That relationship requires Ministers to provide strategic direction to the civil service. It also requires the civil service, led by permanent secretaries, to implement that direction, having warned Ministers—and having been given a reasonable opportunity to be heard by Ministers, a point that Robin Mountfield has made on numerous occasions—if those officials think that the direction of a policy is deeply flawed or would result in a failure of delivery. I do not pretend that the lack of leadership that we have seen from time to time recently is a uniquely Labour disease. It has afflicted previous Governments as well. It is, however, reasonable to ask how things have operated recently. For example, how much strategic direction can have come from the merry-go-round of ministerial reshuffles that we have had? I think that we have had four Secretaries of State for Transport in three years, four Defence Secretaries in four years, and four Home Secretaries in five years. The right hon. Member for Airdrie and Shotts (John Reid) takes the record, having held seven Cabinet posts in eight years. He described the Home Office as “not fit for purpose”, but it was ministerial leadership, not the civil service, that was not fit for purpose. From what I have seen, the civil service aches for good leadership. It wants to implement the plans of elected Governments, not to thwart them. It is when politicians fail it—and only then—that some civil servants are transmogrified into a caricature of Sir Humphrey. This is not just about a failure of strategic leadership, however. Ministers have also used the civil service in ways that they should not have. The Neill Committee warned, as early as 2000, that Ministers were pushing senior civil servants to the margin in the provision of advice, while interposing their own advisers. The role of the adviser was being transformed into that of a spin doctor, a fact reflected most notoriously in the Jo Moore affair at the Department for Transport, Local Government and the Regions. Imagine the state of morale when the permanent secretary in that Department was quoted as saying—I shall not use his exact language; I shall just use the first letter of some of his words—the following: “We’re all f***ed. I’m f***ed. You’re f***ed. The whole department is f***ed. It’s the biggest cock-up ever. We’re all completely f***ed.” Morale must have reached a terribly low level for that exchange to have taken place, and that applied right across Whitehall, not just in that Department.
- Time
- 19:30
- Source
- View in Hansard ↗
- Speaker
- Mike PenningConservative
- Quote
- I can say that the Minister of State, Cabinet Office, the right hon. Member for Basildon (Angela E. Smith) is a friend of mine, as I have known her for many years, but by the time we get to the end of this part of the Committee stage, I might be stretching that friendship an awfully long way. I shall be doing that not out of spite, however, but because I want the Bill to be successful. It is an enormously important Bill, and we have waited an awfully long time for it. That is why I rise to support amendment 10 and new clause 33. I accept the point made by the hon. Member for Southampton, Test (Dr. Whitehead) that, on their own, neither does everything that he and I are looking for, but together they are a damned sight better than what is in the Bill at the moment. I am very suspicious of why the Government have not defined what they mean by the civil service, and perhaps the Minister will explain that to me when she responds to the debate. We have heard that earlier legislation specified all the way through which organisations were part of the civil service. That was excellent for Parliament, as well as for the employees of those agencies and Departments, who knew exactly where they stood. On the day before an important report is due to be published on MPs’ expenses, the need for trust in this Chamber and in the Government is paramount. So why on earth have the Government not set out in the Bill what a civil servant is, and what the civil service is? An organisation that comes under my shadow remit is the Food Standards Agency. I do not know whether it is part of the civil service or not. It rightly tells me that it is an arm’s length organisation set up by Parliament, with a chair, and that it is an independent advisory body. As far as I understand it, however, its employees are civil servants. We would never know such things from looking at the Bill. I am suspicious about where all the civil servants might have gone. My shadow responsibilities involve the Department of Health, and if I am lucky enough to become a Minister of the Crown in that Department, I shall want to know how many civil servants I am responsible for, where the money is going and what departments within that structure are accountable. The Bill, as it is structured, gives me absolutely no idea. I have asked people who come to visit us from the various agencies whether they are civil servants. Some say yes, and some say no. The public, and the civil service, want these arm’s length organisations to be set out in the Bill, right at the start, so that we know where we are. My right hon. Friend the Member for Horsham (Mr. Maude) spoke earlier about the size of the civil service. Under Gershon, the civil service should have shrunk; actually, however, we find that it has not. Perhaps the Government are worried that if they build the numbers into the Bill, we would all know just how big the Government payroll is within the civil service. We know that there has been a huge increase in the number of consultants in the civil service and Departments. Do they fall under the remit of the Bill? Do they have its protection? Some of them have very senior roles in Departments. Senior consultants are working in the Department of Health, for instance, with civil servants working below them. Such people do not have civil service contracts; they are consultants in a Department. Are they covered by the Bill? If they are not, how do the civil servants working below them know where they stand? I suspect that there has been some smoke and mirrors in the civil service, so that numbers have been lost from the payroll but people have come back in through another door as consultants. There is some evidence of that. We need to know the exact costs involved in the civil service—new clause 33(3)(b) would make the Government come forward each year with those exact costs—but how can we calculate them if we have no idea which Departments, which quangos, which arm’s length organisations are part of the civil service? It is important that both amendment 10 and new clause 33 are agreed to in order to take the Bill forward. They are not perfect—I accept what the hon. Member for Southampton, Test said—but they are a lot better than what we have now and we might be able to build on them as the Bill goes through the House.
- Time
- 19:45
- Source
- View in Hansard ↗
- Speaker
- Mr. HealdConservative
- Quote
- I want to follow the remarks of my hon. Friend the Member for Chichester (Mr. Tyrie) in saying how welcome it is that chapter 1 applies to the civil service of the state and that there is protection for the impartiality and objectivity of our civil service, which I believe to be precious. During the early years of the Labour Government, that was damaged by a change in the way in which the Government did their business. Some of the traditional, formal methods by which we had ensured good government came to be damaged during that period. It is right to say that there is a different climate for the civil service generally today, with more people entering it at a later stage rather than trained civil servants moving up the grades. That also impacts on why it is necessary to have a civil service Act. There is a long history to this issue—my right hon. Friend the Member for Horsham (Mr. Maude) went back 150 years—but as recently as 1996 the Liberal Democrats and the Labour party had a joint commission and pledged themselves to a civil service Act. The commission said in clear terms before the 1997 general election that a civil service Act should “give legal force to the Code”— the civil service code— “which should be tightened up to underline the political neutrality of the Civil Service” and “clarify lines of Civil Service and ministerial accountability and responsibility.” Soon after the election, in July 1998, in response to a House of Lords report, that commitment was confirmed. In 2000, the Committee on Standards in Public Life, on which I sit—albeit not on the current Kelly inquiry into Members’ expenses—produced its sixth report and called for a timetable for a civil service Bill. In their response in July 2000, the Government confirmed their commitment to a civil service Act. In 2001, the Committee on Standards in Public Life asked whether the Government were going to go ahead, and Sir Richard Wilson, giving evidence, said yes. Ministers again provided the commitment. In 2002, the right hon. Member for Kingston upon Hull, East (Mr. Prescott), then deputy leader of the Labour party and the Deputy Prime Minister, said that the Government would “produce the Bill”. Needless to say, nothing happened. The Public Administration Committee produced its excellent report towards the end of 2002 or early in 2003 and subsequently a draft Bill, but again nothing happened. In fact, I promoted the Bill and presented it to the House. We had a debate on 21 January 2004, in which the Government again said that they had given a commitment and would produce their own Bill—the Chairman of the Committee may well remember this—before the end of the Session. They did, but we were not given the parliamentary time. It is somewhat surprising that it has taken these 13 long years to get to the point where we are now. The issue of who is a civil servant and how the problem should be dealt with was raised in a debate on 21 January 2004 by the then Member for Milton Keynes, North-West. The hon. Member for Southampton, Test (Dr. Whitehead) might well have been involved in that debate. The point has been made repeatedly since, so it seems extraordinary that when a Bill is before us, we find no full definition of civil servants of the state. The Minister may well tell us that it will be left for the Civil Service Commission to decide in every case whether a person who is making a complaint is a civil servant, although it may be that the Government are expecting the courts to sort it out. That is clearly unsatisfactory after this long period of gestation.
- Time
- 19:45
- Source
- View in Hansard ↗
- Speaker
- Mike PenningConservative
- Quote
- My hon. Friend’s point about the courts is an important one. As I understand it—I am not a learned gentleman—the courts look at Parliament’s intent when an Act is brought into being, but we do not know what Parliament’s intent is because it is not built into the Bill. How, then, will the courts be able to judge it, when we do not know the Government’s exact intentions?
- Time
- 19:45
- Source
- View in Hansard ↗
- Speaker
- Mr. HealdConservative
- Quote
- My hon. Friend makes the point exactly—what are the courts to make of it? That is worrying if we look at the problems of recent years, which my hon. Friend the Member for Chichester mentioned. Let us take the concern that Alastair Campbell and Jonathan Powell had executive authority over civil servants, were more powerful than the Cabinet and were able to tell civil servants right across Whitehall what to do—the key concern that they had executive powers. The concern about the inquiry into Dr. David Kelly is another example, as Lord Hutton found it difficult to piece together exactly what had happened because there were no records or minutes kept of meetings with civil servants, as they had been conducted in “sofa government” ways. That had an effect on the formal, traditional ways of doing things. Certainly when I was a Minister, the idea that a civil servant would fail to make a note of a meeting, or even of a ministerial telephone call, did not occur; civil servants would listen in and make notes of the discussions. A record was kept and everyone was protected by it. By the time we get to the Hutton report—this is also true of the Butler report into the war in Iraq—there had been a breakdown in those traditional ways of doing things, which had previously safeguarded the impartiality and objectivity of the civil service, while also being for very good for Ministers, because they provided some formal structure and pattern to the way in which they carried out their work. It is the breakdown in standards, together with some further changes in the civil service, that led senior former civil servants to say that some form of legislation must be enacted. It is welcome that the Bill is where it is, but it is sad that we have not been able to find in it a definition of a civil servant that is capable of holding water. We want to see protections enshrined in statute partly because, as I alluded to earlier, the nature of the civil service is changing. There was a time when there was a very standard entry procedure and individuals would move up through the grades, being educated as public servants as they went. In a world where many people are now rightly coming into the civil service without that background, it is important to have more structure than we had before. Over the years, it has been said that we need a provision that clearly defines the role of Ministers’ special advisers and the formal civil service. I am glad that the Bill does that, but I also want a proper definition of what a civil servant is, so that we do not end up with a lot of court cases and a mess instead of what should be a major reform.
- Time
- 19:45
- Source
- View in Hansard ↗
- Speaker
- Mr. TyrieNon-affiliated
- Quote
- When the Minister says that non-civil servants will not be covered, does she understand that there is an element of circularity in her definitions?
- Time
- 20:00
- Source
- View in Hansard ↗
- Speaker
- Mike PenningConservative
- Quote
- What I was asking was whether that body fell within the scope of the Bill. I was not asking about its current status. The Bill refers to no organisation, so it is a question of interpretation.
- Time
- 20:00
- Source
- View in Hansard ↗
- Speaker
- Mr. HealdConservative
- Quote
- The Minister may have just answered the question. A list was drawn up in 2004. Is she saying that all employees of the bodies that were on that list on 2004, on which there had been consultation, are civil servants, and that the only people who are not are those employed by the security services—as the Bill says—and by non-departmental public bodies?
- Time
- 20:00
- Source
- View in Hansard ↗
- Speaker
- Mr. MaudeConservative
- Quote
- Does the Minister not find it slightly embarrassing that the Cabinet Office, where she is Minister responsible for civil service matters, has shrugged off any knowledge of civil service numbers, and regards the information as something to be tracked randomly by the ONS? Is that information not central, and should not the centre of Government be in possession of it?
- Time
- 20:00
- Source
- View in Hansard ↗
- Speaker
- David HowarthLiberal Democrat
- Quote
- This has been a very frustrating debate. Whenever the Minister has been asked whether a certain body is part of the civil service, she has asserted with absolute certainty that she knows the answer, and has given an answer. If the answer were as clear as that, the Government would surely be in a position to provide a definition, so why have they not done so? The Minister has said that anyone appointed by the Queen is not a civil servant. That is a good start, but why? She has said, although I was not too sure about this, that everyone who is employed by a non-departmental public body is not a civil servant—or was it every member of one? Again, I was not too sure. Why? Perhaps the members are appointed by the Queen, but obviously the employees are not. I am not sure why that is so clearly the case. Either the Government have at the back of their mind a definition that they are not revealing to us, or they do not have one and are simply trying to look certain about something of which they are not really certain. This has been an interesting debate. Many points were raised about the general principle of the Bill, which I support for the reasons given by the hon. Member for Chichester (Mr. Tyrie). The most important part of the debate on this amendment and new clause, however, was initiated by the hon. Member for North-East Hertfordshire (Mr. Heald), who asked what would happen if it was not clear, in a particular case, whether the Civil Service Commission should act or not. If a person complained to the commission that activity within Government was in breach of the code, would the commission have jurisdiction or not? In the first instance, that is an important question for the commission, but what happens if the applicant disagrees with the commission’s decision and goes to court? Are the Government saying that they are giving up on the question of what counts as a civil servant and that they will leave it up to the courts, and are doing so in circumstances where, if one were looking for parliamentary intention, it is not possible to tell what that is, because we in this Committee do not know what it is? The hon. Member for Hemel Hempstead (Mike Penning) gave the example of the Food Standards Agency. The FSA was included in the 2004 draft Bill, but the other FSA—the Financial Services Authority—was not, so the question is this: which FSA are we talking about? The answer to that is unclear.
- Time
- 20:00
- Source
- View in Hansard ↗
- Speaker
- Mr. TyrieNon-affiliated
- Quote
- Does the hon. Gentleman agree that the courts will use Pepper v. Hart? They will look at what has been said here, and they will find what I think was the only clear definition, which is that anybody who has signed the civil service code is a member of the civil service. That seems to suggest that anybody who decides they want to sign it can then call themselves a civil servant.
- Time
- 20:00
- Source
- View in Hansard ↗
- Speaker
- David HowarthLiberal Democrat
- Quote
- I am glad the hon. Gentleman raised that point, because that appeared to be the import of what the Minister said. Since the civil service code is on the web, I presume anyone can print it off and sign it, and thereby define themselves as civil servants. This does not make any sense at all.
- Time
- 20:00
- Source
- View in Hansard ↗
- Speaker
- Mike PenningConservative
- Quote
- As I understand it, a consultant working in a Department has to sign the civil service code, but they are a consultant rather than employed by the civil service. Will they fall inside or outside the definition?
- Time
- 20:00
- Source
- View in Hansard ↗
- Speaker
- David HowarthLiberal Democrat
- Quote
- That is a very good question. Judging by the Minister’s account, it depends on whether the person wants to sign it, and if they do want to sign it, then they are a civil servant. This is not at all satisfactory. The problem in terms of the courts is that they will try to work out the intention of Parliament and we are trying to get the Minister to put on record what her intention is, but she seems entirely incapable of doing so. She gives the impression that she has some sort of definition to hand, but we cannot work out what it is. She gives examples, but if one attempts the normal case law technique of joining them together to produce a rule, one cannot work out what the rule is that lies behind those examples. This seems to me to be entirely the wrong approach, and if the Joint Committee supported that approach, it could not have been in a position to work out what it was doing.
- Time
- 20:00
- Source
- View in Hansard ↗
- Speaker
- Dr. Tony WrightLabour
- Quote
- I have some sympathy with what has been said, but as someone who has sat through countless discussions of this issue over the years I have to say that the conclusion the Government have arrived at is the conclusion most people have arrived at: that this is the only simple way to deal with the matter.
- Time
- 20:00
- Source
- View in Hansard ↗
- Speaker
- David HowarthLiberal Democrat
- Quote
- If the distinguished Select Committee Chairman is saying that the only way to deal with this is to leave it to the courts, that is a counsel of despair, especially in circumstances such as these in which we are not offering the courts any guidance. The approach in the 2004 Bill seems to me to be better. If one cannot offer a coherent definition, the next best thing to do is not to do nothing, which is what the Government are doing, but to provide a list. The 2004 Bill did that, and amendment 10 would require the Government to go down that road. It would also give them the power to change the list from time to time. I do not want the Committee to divide twice on the same issue, and I recognise that new clause 33 includes within it the same idea that the Government should be under an obligation effectively to tell us who they are counting as being in the civil service. New clause 33 would also goes further than amendment 10 by requiring important information about costs, and I fully support what was said about that. Therefore, if an opportunity arises to support new clause 33 in the Lobbies, I will urge my hon. Friends to do so, but I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 1 ordered to stand part of the Bill. Clause 2 ordered to stand part of the Bill. Schedule 1 The Civil Service Commission
- Time
- 20:00
- Source
- View in Hansard ↗
- Speaker
- Dr. Tony WrightLabour
- Quote
- I beg to move amendment 55, page 33, line 22, leave out ‘, in exceptional cases,’. Following the tortuous nature of the previous discussion, I offer brevity and simplicity. I also rise to press the merits of an amendment that I assume the Government will have no difficulty in accepting. I simply want to remove the single phrase “in exceptional cases” from the reporting requirements being laid upon the Civil Service Commission, as I can see no reason why it should be included. In the previous exchanges my right hon. Friend the Minister prayed in aid the commission and said it had raised no issues about the matter under discussion. It is fair to say, however, that it has expressed concerns about its ability to undertake investigations of code-related matters and of civil service-related matters when it thinks it is appropriate to do so and to report on those to the House. When giving evidence to the Public Administration Committee back in July, the First Civil Service Commissioner said: “I think we agreed in the end that we might well be involved in an investigation if we saw a matter so serious or in fact so systematic, and I repeat that because, if what we were hearing from any source was that there was a systematic concern, then clearly that would be exactly the kind of issue that might cause the Commissioners to launch an investigation of their own to see just what was going on.” The First Civil Service Commissioner also wrote to me very recently, on 19 October, and stated: “Despite some concerns about the potential for politicisation and resource constraints, the commissioners recognised that there may be occasions where it would be right for the commission to carry out such an investigation if there were clear evidence of a significant breach of the code. We would therefore support an approach which gave the commission in addition to the duty to consider a complaint from the civil servant—clause 9—the discretion to investigate matters at its own initiation. We would envisage that the commission would want to exercise this discretion only in cases where the burden of suspicion was substantial.” Therefore, we have the commissioners firmly saying that they do think it would be appropriate for them to have the ability to undertake investigations of civil service issues on their own initiative, and by extension to report on such matters under their reporting obligations. We have a similar arrangement with the parliamentary ombudsman, who is a servant of this House. We ask the ombudsman to produce reports on cases and to produce an annual report, but we explicitly give that office the ability to make special reports to the House where there are particular issues it wants to bring to the House’s attention. It is entirely sensible and straightforward that we would give a similar provision to the commissioners. They want a provision of this kind and it seems sensible for them to have one, and I am sure the Government cannot think of any reason why they cannot have it. I am simply asking for these restrictive words to be removed from the Bill.
- Time
- 20:15
- Source
- View in Hansard ↗
- Speaker
Mrs. Eleanor Laing (Epping Forest) (Con)Conservative- Quote
- I rise very briefly simply to support what the hon. Gentleman has just said. I agree with him.
- Time
- 20:15
- Source
- View in Hansard ↗
- Speaker
- The Temporary ChairmanConservative
- Quote
- That is the briefest speech I have heard.
- Time
- 20:15
- Source
- View in Hansard ↗
- Speaker
- Mike PenningConservative
- Quote
- I also rise to support the amendment tabled by the hon. Gentleman. When the Minister rises to say whether she supports this provision, can she say exactly what the “exceptional circumstances” are? “Exceptional circumstances” could mean something completely different to me, to the Minister, the courts, to the civil service or to the commission. What does “exceptional circumstances” mean? If the Minister can define that exactly in law, the judges will not necessarily have such a field day when this provision comes before them, which I am sure it will.
- Time
- 20:15
- Source
- View in Hansard ↗
- Speaker
- David HowarthLiberal Democrat
- Quote
- I was going to raise exactly the same point, and would simply add this. Who decides whether a case is “exceptional”? If the commissioners decide what is exceptional, the amendment of the hon. Member for Cannock Chase (Dr. Wright) does not achieve very much, because it is purely within the commission’s discretion to decide. If Ministers are to decide, that would obviously be completely objectionable. Ministers should not be able to make such a decision; that would undermine the commission’s independence. If the courts are to decide, that just adds to the complication of the situation without any obvious benefit. The Minister’s choices in replying to the debate appear to be these. She should either say that the commission itself gets to decide what the “exceptional circumstances” are—in which case, why is the phrase in the Bill at all?—or she should just give way to the amendment proposed by the hon. Gentleman.
- Time
- 20:15
- Source
- View in Hansard ↗
- Speaker
Mr. David Heath (Somerton and Frome) (LD)Liberal Democrat- Quote
- I am grateful to my hon. Friend for giving way; I just want us to proceed with this debate in good order. Several Members, including my hon. Friend, have used the phrase “exceptional circumstances”. Actually, the term in the Bill is “exceptional cases”, which is slightly different. It is easier to define “exceptional circumstances” than it is the “exceptional cases” that must be brought to one’s attention by the report. In fact, it is even more difficult for the Minister to defend that inclusion within the schedule.
- Time
- 20:15
- Source
- View in Hansard ↗
- Speaker
- David HowarthLiberal Democrat
- Quote
- I thank my hon. Friend, who is absolutely right: the phrase is “exceptional cases”, which raises a further question about what kind of case is involved. Does this mean a case brought before the commission on a particular complaint? What other kind of case is it? [Interruption.]
- Time
- 20:15
- Source
- View in Hansard ↗
- Speaker
- Mike PenningConservative
- Quote
- The Justice Minister is indicating from a sedentary position that Members of this House should not stand up and scrutinise the Bill, which gives us an indication of the way this Government are going.
- Time
- 20:15
- Source
- View in Hansard ↗
- Speaker
- Mike PenningConservative
- Quote
- No, I am not going to give way. I absolutely agree with what the hon. Member for Cambridge (David Howarth) has just said. The phrase “exceptional cases”—I am sorry, Sir Nicholas, if I slightly misled the Committee when I used the phrase “exceptional circumstances”—makes it even more difficult for the commission to define what it should look at and what it should not. Surely the logical thing to do is to remove this phrase and let the commission decide, which is what it is there for.
- Time
- 20:15
- Source
- View in Hansard ↗
- Speaker
- David HowarthLiberal Democrat
- Quote
- Yes, that is a very good point. I apologise, Sir Nicholas—I was attempting to make a speech even shorter than that of the hon. Member for Epping Forest (Mrs. Laing). I failed to do so, but I support the amendment.
- Time
- 20:15
- Source
- View in Hansard ↗
- Speaker
- Mr. HeathLiberal Democrat
- Quote
- Cases.
- Time
- 20:15
- Source
- View in Hansard ↗
- Speaker
- Dr. Tony WrightLabour
- Quote
- It is really very difficult to keep a straight face, Sir Nicholas. What is really disappointing is that when the process of this Bill began, all the Front Benchers were saying, “Of course we will be open to amendments. This Bill is not fixed in stone, and we will bring it forward in a spirit of taking sensible amendments.” Indeed, when the Cabinet Secretary was in front of our Committee just last week, the same was said when we raised a similar issue with him, so I am afraid there is a mismatch here with the spirit in which we all engaged upon this Bill. There is a genuine desire across the House to get the Bill done. It is rooted in a political consensus, so it is very difficult to understand why the Government want to insist on something that, as the Minister has just described it, is completely unnecessary. Given that we simply want the commission to be able to make a report if, in certain circumstances, it wants to do so, why on earth would we want to stop it? The commission itself would do that only if it thought the occasion warranted it. We have reached a level of absurdity, and I say to my right hon. Friend the Minister in a spirit of comradeship that resistance is not necessary at this point.
- Time
- 20:15
- Source
- View in Hansard ↗
- Speaker
- Dr. WrightLabour
- Quote
- In the spirit of not only co-operation and not being difficult, but total mystery, I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Question proposed, That the schedule be the First schedule to the Bill.
- Time
- 20:30
- Source
- View in Hansard ↗
- Speaker
- David HowarthLiberal Democrat
- Quote
- I wish to raise two points and ask two questions about the schedule. Both points relate to the independence of the commission and both were raised by either the Joint Committee or the Public Administration Committee in their deliberations on the Bill. The first point is about the power of the Government—in this case, presumably the Minister for the Civil Service—over the commission’s budget. Can this Minister explain what the procedure will be for setting the commission’s budget? Will the Government of the day—the Minister for the Civil Service, in particular—have the power to set conditions on the way in which that budget is spent or to limit the content of the commission’s activities using a budgetary mechanism? If that is the case—some concern was expressed on this point by the two Committees—that will, of itself, undermine the commission’s independence. The second point relates to the appointment of the first commissioner, which is obviously an important matter. I understand that the Bill says that the first commissioner is appointed by the Government, after consultation with various other people. A proposal was made—I believe by the Public Administration Committee—that as that was not enough to ensure the independence of the first commissioner, the appointment should be subject to the agreement of someone outside government; one suggestion was that the agreement of the Leader of the Opposition should be required in order to ensure the complete independence of the first commissioner. I have not heard from the Government as to why they rejected that particular proposal, and I wish to ensure that the Civil Service Commission should be as independent as possible.
- Time
- 20:30
- Source
- View in Hansard ↗
- Speaker
- David HowarthLiberal Democrat
- Quote
- I thank the Minister for that assurance, although I am not sure that it is enough to ensure the independence of the commission, especially if it will get into trouble for complaining about conditions governing its own budget or, at the very least, be worried about whether making a complaint would make the problem of its budget worse the following year.
- Time
- 20:30
- Source
- View in Hansard ↗
- Speaker
Pete Wishart (Perth and North Perthshire) (SNP)Scottish National Party- Quote
- I beg to move amendment 48, in page 3, line 7, at end add— ‘(6) The Minister for the Civil Service shall delegate the appointment and approval of senior civil servants to senior posts in the Scottish Executive to the Head of the Home Civil Service, acting on advice of the Civil Service Commission.’. This is a simple and modest amendment that seeks to transfer the appointment of senior civil servants from London to Edinburgh. May I start by giving a bit of the context before I get into the meat of the amendment? This is not the preferred position of the Scottish National party. We would, quite obviously, prefer to see a properly devolved civil service accountable to Scottish Ministers and the Scottish Parliament, much like those that we observe in normal legislatures around the world—in normal, self-respecting Parliaments. That is what we seek in terms of a civil service for Scotland, but it is not what we intend to seek when it comes to the appointments of senior civil servants. We would prefer that decision to be made by the First Minister of Scotland, and we would see him as responsible for making those key appointments. That is what happens in any self-respecting normal Parliament or legislature throughout the world. That is what we would preferably seek in order to try to ensure that we had the proper deal and arrangements for Scotland. Through amendment 48, I am putting forward the agreed position of the Labour party, the Conservative party and the Liberal party, as agreed with the Calman commission. I am prepared to set aside our preferred option—what we would ideally like to see—so that progress can be made. This is important. Progress can be made, and sometimes it is important for us to set aside our preferred and ideal options so that we can move forward to consensus. Sir Nicholas, you know me well enough to know that I always try to be as helpful as possible in such cases. This evening I am trying to be helpful, constructive and positive so that we can make progress on this serious key issue. I do not want the Front Benchers from all the political parties to get up and thank me for tabling this amendment. That is not necessary; I am not looking for it, and I would feel a little embarrassed if they did so, so perhaps they can restrain themselves and remain seated while I make the rest of my speech. However, I expect to secure from the Front Benchers of all the Calman parties their overwhelming and enthusiastic support. I expect to see them and their right hon. and hon. Friends going through the Lobby, overwhelmingly backing their position. I expect that, because it is their agreed position, as agreed with the Calman commission. There can be no excuse whatsoever for a failure to support my amendment this evening. I am looking forward not just to support but to enthusiastic support. The only thing that surprises me is that it has been left to me, a humble Scottish National party Member, to table an amendment on the agreed position of the Labour party, the Conservative party and the Liberal party. I thought that when we had an opportunity to make progress on some of the very important Calman recommendations, there would almost have been a race. I thought that the Labour and Conservative Whips Offices would have tried to outdo each other in a stampede to be the first to the Public Bill Office to table this amendment. But we have not heard a peep from them, and it is left to a humble Back Bencher from the Scottish National party to get to his feet and try to ensure that we get some progress on this matter—to try to advance the agreed position of the Labour, Conservative and Liberal parties. I find it a bit odd that it is left to me to do this task, but I look forward to their support. The Minister will know that there will be precious few opportunities to introduce some of the Calman recommendations in the next few months. Parliamentary time is tight and we have here an ideal opportunity to ensure that one of the key proposals of the Calman commission is introduced. For the life of me, I cannot understand why there could possibly be any reluctance to support this modest but important amendment, which is in line with Labour, Conservative and Liberal party policy. I tried to frame the amendment as closely as possible to what was suggested in recommendation 4.21 of the Calman report. My amendment reads: “The Minister for the Civil Service shall delegate the appointment and approval of senior civil servants to senior posts in the Scottish Executive to the Head of the Home Civil Service, acting on advice of the Civil Service Commission”. The Calman commission’s recommendation 4.21 states: “The responsibility for appointing, or approving appointments of, senior civil servants to senior posts in the Scottish Government should be delegated by the Prime Minister to the Head of the Home Civil Service, acting on the advice of the UK Civil Service Commissioners.” They are almost identical. I do not want the Minister to say that I am trying to twist or misinterpret what was suggested about her position in relation to the Calman commission. That is not my intention: I have been as helpful as I can be by framing the amendment so that it is as close as possible to the commission’s original wording. The only difference that I can see is that this Government cannot get their head around the fact that Scotland has a Government, rather than an Executive.
- Time
- 20:30
- Source
- View in Hansard ↗
- Speaker
- Mrs. LaingConservative
- Quote
- I am puzzled as to why the hon. Gentleman is supporting the Calman commission this evening, instead of putting forward the position of the Scottish National party.
- Time
- 20:30
- Source
- View in Hansard ↗
- Speaker
- Pete WishartScottish National Party
- Quote
- I know that the hon. Lady listens to every word that I say, and I am saying that I am prepared to set our ideal position aside so that we can make progress. The amendment would be at least a start to transferring some decisions on the civil service from London to Edinburgh. I am hoping to enlist her support in getting it through, although the crucial difference between the Calman process and the Scottish Government’s national conversation is that we trust the people of Scotland to make the choice. We are prepared to take our proposal to the Scottish people, but the hon. Lady rejects that. When the Conservatives come to contest the next election, they might find that there is a heavy price to pay in Scotland for their failure to allow the people there to have a choice. The amendment represents the agreed position of the Labour, Conservative and Liberal parties, all of which have the opportunity to support it this evening. What happens if they do not? That is a key question. Is Sir Kenneth wasting his time? Is he sitting in Glasgow university wondering what will happen to the rest of his recommendations? This evening, with this key piece of legislation, there is an opportunity for the House to enact one of his recommendations, but he will be observing our debate and wondering, “What on earth is going to happen to the rest of them?” What will parliamentarians in the Scottish Parliament who are keen to see progress made and more powers devolved make of their colleagues in Westminster rejecting this proposal?
- Time
- 20:30
- Source
- View in Hansard ↗
- Speaker
Stewart Hosie (Dundee, East) (SNP)Scottish National Party- Quote
- No Labour Members are even here. Where are they? Our party has a better turn-out.
- Time
- 20:30
- Source
- View in Hansard ↗
- Speaker
- Pete WishartScottish National Party
- Quote
- My hon. Friend asks where the Labour Members are. Looking at the deserted Labour Back Benches, I am wondering the same thing. No Scottish Labour Member is present, with the honourable exception of the Parliamentary Private Secretary sitting behind the Minister. Where is the Scottish Secretary? I though that this was his big idea. The Calman commission was supposed the vehicle for looking at devolution 10 years on. Here is a chance for the right hon. Gentleman to get one of his key proposals through, but he is not even here. That is appalling, Sir Nicholas. I am sure that when you look at all the empty Benches, you are wondering what on earth Scottish Labour Members are doing. I am also sure that the people of Glasgow, North-East are looking at what is going on this evening. They will see that whereas my hon. Friends sitting next to me and I are ready to debate and consider an important recommendation for Scotland, not one Scottish Labour Member is present on the Government Back Benches. The people in Glasgow, North-East will be looking very carefully at who represents the Scottish interest best in this House. What happens if the amendment is rejected? I believe that it will mean that the work of Calman commission is not worth the paper that it is written on. That will be very closely observed—but in the spirit of my helpful contribution, I will make the Minister a deal. I am sure that she will stand up and say that the amendment is not suitable for this Bill, and so on. However, if she can give me a cast-iron commitment and guarantee that a specific piece of legislation will be introduced in the next few months to get this proposal through, I will not have to go through with the appalling prospect of embarrassing Labour Members by asking them to vote against their own measure. That is my contract with her this evening. I do not want to be so cruel—[Interruption.] My colleagues are egging me on, but I believe that I owe it to Labour Members to give them an opportunity to try to put this matter right. The Minister can do that on their behalf but, if she does not say what I want to hear, I will press the amendment to a vote.
- Time
- 20:30
- Source
- View in Hansard ↗
- Speaker
- Mrs. LaingConservative
- Quote
- I thank the hon. Gentleman for giving way again, as I have a genuine question. He is right to point out that no Government Back Benchers are present to ask questions on behalf of those who are puzzled by the amendment, so in their absence I shall try to do so. I understand what the hon. Gentleman is saying about the Calman commission. I understand the conclusions of Sir Kenneth Calman and his colleagues, and I have some sympathy with them. However, it is difficult to see how the amendment will transfer the power to which the hon. Gentleman refers from London to Edinburgh. I understand that he is saying that the amendment is only a step in the right direction. It would take power away from institutions in London, but it does not say specifically that power will rest in Edinburgh.
- Time
- 20:30
- Source
- View in Hansard ↗
- Speaker
- Pete WishartScottish National Party
- Quote
- The hon. Lady has obviously never looked at the amendment. It seeks to achieve the transfer of the appointment of senior civil servants from London to the home civil service in Edinburgh. It is the start of a process. That is the hon. Lady’s position, too. It is what her party agreed in the Calman commission. It is her party’s position, as well as the position of the Labour party and of the Liberals. I have heard from a sedentary position the assurance that the Liberals will support the amendment, and I thank them for that. It is now a matter for the Minister. She can either assure me without equivocation that she intends to introduce a separate piece of legislation to achieve the aim of the amendment, or we will have to go through the ridiculous, almost grotesque spectacle of Labour Members voting against their own policy. It is up to the Minister.
- Time
- 20:45
- Source
- View in Hansard ↗
- Speaker
- David HowarthLiberal Democrat
- Quote
- I am not sure whether I can speak on behalf of the old Liberal party, of which I used to be a member, but I can certainly speak on behalf of the Liberal Democrats. I would urge Liberal Democrat Members to support the amendment if it is pressed to a vote. As the hon. Gentleman said, the amendment does not represent the separation of the civil services which some in his party seek. It is simply a measure of further devolution politically—not by further devolving the power itself, but by removing a power from the UK Prime Minister. It seems a perfectly sensible suggestion to transfer power over senior appointments in Scotland from a politician—the UK Prime Minister—to the head of the home civil service for the United Kingdom, the Cabinet Secretary. Some people might think that that is a purely symbolic gesture, but it would provide some protection for the process of appointment to the civil service in Scotland, which does not exist now. Given the history of prime ministerial interference in senior civil service appointments that we suspect has been going on at United Kingdom level—at least under a previous Prime Minister—that seems an entirely sensible thing to do. It raises the question why the Bill retains the power of the Prime Minister, as Minister for the Civil Service, to interfere with senior appointments at United Kingdom level—an issue that seems to have disappeared from the Bill, in comparison with previous drafts. Perhaps that is the reason why the Government are nervous about the amendment. I come back to the point about devolution. It seems perfectly reasonable to have a different system even on that question in Scotland, compared with the rest of the United Kingdom. I do not think that threatens the unity of the civil service, and it provides a sensible way forward. Speaking as an outsider, I think that the Calman commission provides a sensible way forward for further devolution to Scotland, so I approve of the amendment and would vote for it if the Committee were to divide on it.
- Time
- 20:45
- Source
- View in Hansard ↗
- Speaker
Mr. Tom Watson (West Bromwich, East) (Lab)Labour- Quote
- I have the highest regard for the hon. Member for Perth and North Perthshire (Pete Wishart). His humility goes before him. I admire his talents—his musical talents more than his political talents. As he knows, I represent a midlands seat in England, but when I look from afar at the amendment, I begin to think that he is selling out. He might be selling Scotland down the river with the amendment. The trappings of office are getting to the Scottish National party. The amendment is a pathetic piece of symbolism. If he really stood up for Scotland—
- Time
- 20:45
- Source
- View in Hansard ↗
- Speaker
Angus Robertson (Moray) (SNP)Scottish National Party- Quote
- It’s your party policy.
- Time
- 20:45
- Source
- View in Hansard ↗
- Speaker
- Mr. WatsonLabour
- Quote
- Hey, I am on the Back Benches. It might be my party policy but I can say what I want now. The hon. Member for Perth and North Perthshire is selling Scotland down the river with that amendment. It is a pathetic piece of symbolism to score points in a by-election. He has spoken eloquently, but the amendment would not fundamentally change the relationship between London and Edinburgh, and he knows it. I want to stand up for the people of Scotland and the voters in Glasgow, North-East, so I shall oppose the amendment if he presses it to a vote.
- Time
- 20:45
- Source
- View in Hansard ↗
- Speaker
- Mrs. LaingConservative
- Quote
- I have a genuine question about practicality. If the amendment were agreed to, would it pass power from London to Edinburgh, or would it pass power only from one London office to another London office? That is a genuine question.
- Time
- 20:45
- Source
- View in Hansard ↗
- Speaker
- David HowarthLiberal Democrat
- Quote
- I should remind the Minister that we are in Committee, so we are allowed speak again in the same debate. She did not explain precisely how the ends that the hon. Member for Perth and North Perthshire (Pete Wishart) desires in moving the amendment can be achieved through the Bill as it stands. I would be very grateful if she were to put on the record exactly how they could be, because I can see no such power. However, she seems to be claiming that it exists.
- Time
- 20:45
- Source
- View in Hansard ↗
- Speaker
- Pete WishartScottish National Party
- Quote
- I have very much enjoyed this particularly illuminating debate. So that we understand the discussion, I should say that the amendment would take the power to appoint senior civil servants in Scotland out of the hands of the Prime Minister and put it into those of the head of the home civil service. It is a very modest measure. It is not pathetic, as the hon. Member for West Bromwich, East (Mr. Watson) says, because it would be unfair to describe the Labour party’s position as pathetic, and I am not prepared to do that.
- Time
- 20:45
- Source
- View in Hansard ↗
- Speaker
- Mr. WatsonLabour
- Quote
- The hon. Gentleman is turning into a real London luvvie, defending this amendment, which would hand no power to Scotland. He should be ashamed of himself, and apologise to his constituents and to his party.
- Time
- 20:45
- Source
- View in Hansard ↗
- Speaker
- Pete WishartScottish National Party
- Quote
- I thank the hon. Gentleman for that useful intervention. The prospect of my becoming a London luvvie is probably several degrees removed from reality. The amendment is a modest measure, and I tabled it to try to be helpful. It is about being constructive and making gentle progress towards securing what we believe is a greater ambition for Scotland. I thought that by discussing the agreed position of the Labour party, the Conservative party and the Liberal party, we could start to move the traffic in the right direction. The Minister went on about some nonsense to do with our commitment to Calman. May I say to her—she is not listening, but I will say it anyway—that where there is agreement on Calman, for goodness’ sake let us act on it? There are several parts of Calman that we have absolutely no problem whatsoever about implementing, such as its recommendations on the devolution of firearms legislation and on drink-driving. If the Unionist parties—the London-based parties—think that it is a good idea and we think that it is a good idea, let us do it; there should be no problem with that. But for some reason, Calman has been presented as an all-or-nothing package, so we cannot do the good things and leave aside some of the nuttier suggestions that he mucked about with at the edges. Where it is useful, where it is constructive, and where it takes things forward, let us get on and deal with it. The Minister’s response has not been satisfactory, and that is disappointing and unfortunate. We are now going to see the ridiculous spectacle of Labour Members walking through the Lobby voting against their own position and their own proposals. I am very much looking forward to witnessing that.
- Time
- 20:45
- Source
- View in Hansard ↗
- Speaker
- Mrs. LaingConservative
- Quote
- I have a lot of sympathy for what the hon. Member for Perth and North Perthshire (Pete Wishart) said, as I often do when we take part in the same debates. He has highlighted an important issue. However, as the Minister says, the whole Calman report has to be looked at as one entity, and it would be wrong to press a small part of its recommendations in the Bill. Having said that, I, like the hon. Gentleman, look forward to the Government’s responding to Calman soon, so that we can get on with these matters, because we believe in power resting in Edinburgh where it should do so. Question put, That the amendment be made.
- Time
- 20:45
- Source
- View in Hansard ↗
- Speaker
- Mr. HeathLiberal Democrat
- Quote
- I want to ask the Minister a simple question that relates to an obvious omission from this part of the Bill. In the 2004 draft Civil Service Bill, there was an explicit statement in clause 4(4) that “Nothing in this section confers…power to recruit, appoint, discipline or dismiss civil servants, or…any other power for the day to day management of civil servants.” Ministers have the power to hire and fire civil servants, but that provision made it explicit that they should not do so. This Bill does not repeat that explicit assurance, but it should. The Public Administration Committee made that point in its response to the draft Constitutional Renewal Bill, when it said: “Giving Ministers the general power to appoint and dismiss civil servants does not seem in keeping with the Government’s commitment to a civil service recruited on merit and able to serve administrations of different political persuasions.” I agree with that. The Joint Committee on the draft Bill said: “While Ministers can legitimately be consulted about particular moves within the civil service, Ministers should not be involved in appointment or dismissal of individual civil servants without the express approval of the Prime Minister. We invite the Lord Chancellor to follow up on his offer to look again at the drafting…to reflect this.” I do not agree with the Joint Committee, because I do not think that the Prime Minister should be able to give explicit approval either. I want clear protection for civil servants from this extraordinary power that Ministers have. The Minister may reply to my points by saying that the clauses on recruitment mean that Ministers cannot intervene except within the very narrow tramlines of the recruitment process that is set out, but I do not think that that is sufficient and I would like an explicit exclusion. If Members want a rationale for such an exclusion, we have been provided with one in the past few days, with the sacking of an independent scientific adviser. Although he was not a civil servant, the incident raises exactly the sort of issues that are relevant to this debate. Indeed, my colleagues tabled new clause 42, which addressed the point. It had the great advantage of topicality, but the great disadvantage of not being timely. Because the circumstances arose over the weekend, it could be tabled only yesterday and therefore could not be selected for today’s debate. I shall not speak in detail about it, therefore, but it would have given protection to independent scientific advisers to do their job as independent scientists. However, I shall press the question with the Minister about why Ministers will not be expressly forbidden to hire and fire civil servants. That should be a basic principle that is enshrined in the Bill. Otherwise, there is the possibility of abuse and people being removed for political purposes. If we are to give proper protection to civil servants, we can do it only through a provision of the kind proposed.
- Time
- 20:45
- Source
- View in Hansard ↗
- Speaker
- Mrs. LaingConservative
- Quote
- The hon. Member for Somerton and Frome (Mr. Heath) has got his priorities a bit mixed up. It is touching that he wishes to protect civil servants, but I believe that it is the duty of the House to require the accountability of civil servants. That accountability is derived through ministerial accountability to Parliament. There has to be a chain of accountability, therefore, from civil servant to Minister to Parliament. That is what the Conservative party, in other circumstances, has proposed. In so far as the clause brings that about, to a certain extent, we support it. I am disappointed to see the hon. Gentleman get his priorities so mixed up. I hope that the Minister has not got her priorities mixed up.
- Time
- 21:15
- Source
- View in Hansard ↗
- Speaker
- David HowarthLiberal Democrat
- Quote
- Is the hon. Lady saying that any Government of whom she might be a member would think it appropriate for Ministers to hire and fire individual civil servants?
- Time
- 21:15
- Source
- View in Hansard ↗
- Speaker
- Mrs. LaingConservative
- Quote
- Of course not; that is already protected. The Liberal Democrats should not be quite so touchy; my criticism of them does not mean that I am saying that everything that they have said is wrong. They ought to calm down. I am merely saying that the real issue is accountability. It is a pity that clause 3 does not go further in respect of the accountability of civil servants and Ministers to the House, which is then accountable to the people. That should be the principle on which we work.
- Time
- 21:15
- Source
- View in Hansard ↗
- Speaker
- David HowarthLiberal Democrat
- Quote
- Will the Minister give way?
- Time
- 21:15
- Source
- View in Hansard ↗
- Speaker
- David HowarthLiberal Democrat
- Quote
- I am not sure whether the Minister’s point was sensible. She said that independent scientific advisers are not civil servants. How does she know?
- Time
- 21:15
- Source
- View in Hansard ↗
- Speaker
- Mr. HeathLiberal Democrat
- Quote
- I have now heard two speakers, from the Conservative Front Bench and from the Government Front Bench, who are muddled in their thinking and completely misunderstand the basic process that the Bill is intended to elucidate. The hon. Member for Epping Forest (Mrs. Laing) went off on a mini-tirade about how we were completely wrong to question whether Ministers should hire and fire civil servants. When my hon. Friend the Member for Cambridge (David Howarth) put it to her that she might support the hiring and firing of civil servants by Ministers, she said that of course she did not and that that was outrageous. We really do expect some coherence of thought and some logic in the contributions made in this Committee, especially from the Front Bench of a party that aspires to government.
- Time
- 21:15
- Source
- View in Hansard ↗
- Speaker
- Mrs. LaingConservative
- Quote
- The hon. Gentleman has completely misrepresented what I said. He is so touchy that the slightest criticism appears to send him into a temper. I do not want to take any more of the Committee’s time on this matter, but he must not misrepresent what I said.
- Time
- 21:15
- Source
- View in Hansard ↗
- Speaker
- Mr. HeathLiberal Democrat
- Quote
- I am indeed in a temper: a good temper, as I always am. When the Official Report is studied, it will be clear what the hon. Lady said and how little it resembles what she apparently means. When it comes to the Minister, however, I shall ask the question again—obviously I am not going to get a response, so this is the last time that I will ask it. Why was something right just in 2004? It was not right because I tabled it as an amendment or because the Joint Committee said that it wanted it, but something that the Government put down as a crucial element, using the following words, which I have already quoted: “Nothing in this section confers…power to recruit, appoint, discipline or dismiss civil servants”. One would have thought that that was a key protection, but now the Minister says, “It’s completely unnecessary: it’s understood; it’s tacit. We no longer need to say that.” What has changed? Why was that necessary then, probably on the advice of some of the same civil servants who now advise her that it is not necessary? I do not think it unreasonable for the Committee to be given an explanation about that. Simply to assert that something that the Government said was necessary is now not necessary is an insufficient argument. It is very regrettable that we are proceeding with the Bill on the basis of assertion and counter-assertion, rather than explanation and consideration of the underlying principles.
- Time
- 21:15
- Source
- View in Hansard ↗
- Speaker
- David HowarthLiberal Democrat
- Quote
- Will the Minister give way?
- Time
- 21:15
- Source
- View in Hansard ↗
- Speaker
- David HowarthLiberal Democrat
- Quote
- The Minister seems to be saying that this is now a principles-based Bill, as opposed to a rules-based Bill, but then the question is: what principle did the previous rule represent? The principle that the previous rule represented, it seems to me, was the principle that Ministers should respect the impartiality of the civil service. However, that principle is not in the Bill, and we have had to design a new clause to try to insert it. If that is not the principle that was involved, what principle was involved?
- Time
- 21:15
- Source
- View in Hansard ↗
- Speaker
- David HowarthLiberal Democrat
- Quote
- But not Ministers.
- Time
- 21:15
- Source
- View in Hansard ↗
- Speaker
- Mr. MaudeConservative
- Quote
- rose—
- Time
- 21:15
- Source
- View in Hansard ↗
- Speaker
- Mr. MaudeConservative
- Quote
- I am grateful to the Minister for confirming that the Bill intends to make no change to the current arrangements, which have persisted reasonably successfully for a long time without serious challenge. Will she also confirm that the protection for civil servants against ministerial political interference in recruitment, dismissal or promotion lies with the Civil Service Commission, as it has done for many years before this Bill eventually came along, and that that protection will be given greater entrenchment by the Bill?
- Time
- 21:15
- Source
- View in Hansard ↗
- Speaker
- David HowarthLiberal Democrat
- Quote
- Clause 5 is about the civil service code, to which the Minister has just referred. She also claimed that the ministerial code was entrenched in the Bill. Will she explain which clause mentions it? It is not defined anywhere in the definitions section; I think that she must have misspoken.
- Time
- 21:15
- Source
- View in Hansard ↗
- Speaker
- David HowarthLiberal Democrat
- Quote
- I must therefore conclude that the ministerial code will not be statutory and will not have the same degree of protection that the civil service code will have, as it is the purpose of this clause to entrench that protection in law. The Minister must recognise that it is a deliberate policy decision by the Government not to give statutory force to the ministerial code because they do not want the courts to interfere with Ministers. That is fine, but I do not think she should pretend that the situation is otherwise.
- Time
- 21:15
- Source
- View in Hansard ↗
- Speaker
- Mrs. LaingConservative
- Quote
- I would like to ask the Minister why it is deemed necessary to specify, in clause 5(2), that “the Minister may publish separate codes of conduct covering civil servants who serve the Scottish Executive or the Welsh Assembly Government.” Given that codes of conduct are about matters of principle, why should those principles be different for civil servants who serve the Scottish Executive or the Welsh Assembly? I appreciate that the policies and procedures are different, as indeed they should be in a devolved situation, but why should the codes of conduct be different?
- Time
- 21:15
- Source
- View in Hansard ↗
- Speaker
- Mr. MaudeConservative
- Quote
- I beg to move amendment 50, page 4, line 29, at end insert ‘with a fiduciary responsibility to spend taxpayers’ money responsibly.’. The civil service code and its entrenchment in statute is the central part of the civil service portion of the Bill. It is extremely important; we strongly support it. In a way, clause 7, which sets out some minimum requirements for that code, is the heart of this part of the Bill. We strongly support the values promoted here—integrity, honesty, objectivity and political impartiality. I am conscious that because the provision is so important, there is a danger of wanting constantly to add bells and whistles as if it were a Christmas tree, but we believe that a further minimum requirement should be added. As the Conservative party outlined in a paper, “It’s Your Money”, published in February this year, a fiduciary responsibility should be placed on civil servants. The term generally means that someone trusted with the assets, wealth or well-being of a third party has a responsibility to manage them in the best interests of that third party. We believe that that is essentially at the heart of much of what the civil service does, and we would like to see it enshrined in the code. We believe that all employees in the public sector should abide by the principles of fiduciary responsibility, but the proposed code does not cover the full spectrum of people employed by the state. We discussed in the context of clause 1 the lack of a definition about who is covered. Many contract workers, agency temporary workers or employees of non-departmental public bodies are not covered by the civil service code. We propose that a separate code should be established for those employees, stressing the same fiduciary responsibility. I stress that we do not propose this fiduciary responsibility in any hostile spirit to civil servants; rather, I would say, the reverse. I believe that this provision would provide protection for civil servants, especially if it were backed with the amendments and new clauses grouped together on clause 9, which would place an obligation on Ministers—building on a point made previously—to respect the civil service code. Of course, the ministerial code already does that, although it is not, as the hon. Member for Cambridge (David Howarth) rightly pointed out, entrenched in statute, but nor would the Bill achieve that. Ministers have a duty to respect the civil service; they should respect not only its code of values, but its role in providing advice. Of course Ministers are not obliged to accept the advice of their civil servants, but they should surely always seek it, listen to it and make judgments after assessing it. When public money is spent badly or inefficiently, it is very often the consequence not of civil servants being lax, careless, inefficient or hopeless, but of them being forced to do things by unwise ministerial decision, often in the face of civil servants’ advice. I cited on Second Reading the example of the introduction of tax credits. It is now well attested that the then Chancellor, now the Prime Minister, was strongly advised by civil servants in both the Revenue and the Treasury that the way he proposed to proceed with tax credits would introduce serious risk of fraud and error, all of which came about. The advice was ignored and the result was a grave misuse of public money, not to mention the enormous human misery caused to hundreds of thousands of low-paid, hard-working people who found themselves required to pay back money that they had received in good faith. Those people thought that they were doing the right thing and obeying the law. The point about incorporating this fiduciary responsibility into the code of conduct is that if in those circumstances a Minister tells civil servants that they must go ahead and implement the policy regardless, against their own advice, there is at least some protection for those civil servants.
- Time
- 21:30
- Source
- View in Hansard ↗
- Speaker
- Mr. Gordon PrenticeLabour
- Quote
- Is that not already covered by the designation of permanent secretaries as accounting officers for the Departments for which they are responsible?
- Time
- 21:30
- Source
- View in Hansard ↗
- Speaker
- Mr. MaudeConservative
- Quote
- There is no harm in making that designation more explicit, and giving it some teeth by entrenching it in statute. There is, of course, already a provision enabling a permanent secretary who feels that he or she is being required to do something that is not in the interests of the taxpayer to put in writing to the Secretary of State a request that he or she—the permanent secretary—be directed to implement the policy, but to my knowledge that has happened on only eight occasions in the past 12 years. It did not happen when tax credits were introduced. Arguably it should have, because it is understood that robust advice was given to the Chancellor to which he refused to listen. There is a strong case for saying that, given the circumstances, the chairman of the Revenue and the permanent secretary to the Treasury should have put in writing to the Chancellor that they needed to be directed, because their advice was that such action would be very harmful. In the circumstances in which this country now finds itself, with a ballooning public debt and a budget deficit that seems to be out of control, incredible care with taxpayers’ money will be of central importance in the years that lie ahead. It seems to us really important that protection for civil servants against being required to do things that are not in the interests of taxpayers should be entrenched. We think that Ministers should have a statutory obligation to respect the impartiality of civil servants. We have a good deal of sympathy with a Liberal Democrat new clause, which we hope will be reached later. In the meantime, however, this amendment—which reflects the central importance for the whole Executive of respecting and acting in the interests of taxpayers—would provide an extremely valuable additional discipline. As I have said, it would provide protection for civil servants against being bullied into implementing policies that were not in the interests of the taxpayer.
- Time
- 21:30
- Source
- View in Hansard ↗
- Speaker
- David HowarthLiberal Democrat
- Quote
- I sympathise very much with the intention behind the amendment. I do not think that it would do any harm to include a responsibility in the code and the Bill to ensure that public money is spent wisely. My only worry relates to the use of the word “fiduciary”, which gives the impression that the relationship between civil servant and Government is similar to the relationship that used to exist between local councillors and their authorities in the days of surcharging. The word “fiduciary” always cropped up in surcharging cases. Given the vast amounts of public money that go through Departments, it would be entirely wrong to open up civil servants to the possibility of having to repay perhaps billions of pounds to the public. I do not think that that was the intention of the right hon. Gentleman, but perhaps he should rethink the wording of the amendment on a future occasion.
- Time
- 21:30
- Source
- View in Hansard ↗
- Speaker
- Dr. Tony WrightLabour
- Quote
- This Bill has been through so many previous incarnations that it is sometimes difficult to keep up with it. In one of its incarnations, there was a list of various duties that civil servants would be obliged to perform, including the duty “to discharge public functions reasonably and according to law” and another duty to do with standards of administration. It seems to me that there are two possible logical positions: to set out the duties of civil servants, or to take the Bill’s approach and simply to say what are the core values. There is not a case, however, for taking one duty—in this instance, fiduciary responsibility—and seeking to insert it into the Bill without addressing all the other ones. There must be all or nothing, and this is just a gesture in the middle.
- Time
- 21:30
- Source
- View in Hansard ↗
- Speaker
- Mr. MaudeConservative
- Quote
- I have listened to the comments of the Minister and others. We think that this duty is an important part of the obligations on civil servants and that a statement of that would give additional protection to civil servants, but there are other ways of addressing the issue and we should look into them further. I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 7 ordered to stand part of the Bill. Clause 8 Special Advisers code
- Time
- 21:30
- Source
- View in Hansard ↗
- Speaker
Kelvin Hopkins (Luton, North) (Lab)Independent- Quote
- I beg to move amendment 79, page 4, line 33, leave out ‘special’ and insert ‘Ministerial’.
- Time
- 21:30
- Source
- View in Hansard ↗
- Speaker
- Kelvin HopkinsIndependent
- Quote
- I say at the outset that I do not intend to press my amendments to a vote. One good reason is that, unfortunately, there are some slight technical errors. However, they are important amendments and I hope that my Front-Bench colleagues will at least consider incorporating their spirit, and even some of their wording, into the Bill at a later stage. They are about special advisers and seek to replace the term “special” with “ministerial”, so that we know precisely to whom the advisers are addressing their advice. It is a more accurate word and it would clarify the role of special advisers in future if they were called “ministerial advisers”. The Public Administration Committee, of which I am delighted to be a member, has discussed the role of special advisers at some length. Perhaps other Members have also discussed this issue during the debate, but there is a history to special advisers with which I have some familiarity. In the 1970s, I knew Tony Benn and his special advisers. However, the famous Francis Cripps and Frances Morrell operated strictly as his political advisers; they did not have a role in advising or instructing civil servants. What they did was useful and legitimate, although it did not please the civil servants at the time. Tony Benn’s habit was to speak first thing in the morning to his personal political advisers and then later to the civil servants, so that he was well prepared for debating with them later in the day. That was seen then by the civil servants as untoward. However, under Tony Blair the power of special advisers went way beyond that; they took on a much more powerful role. They were effectively directing civil servants, acting as an Executive layer between Ministers and civil servants. This was something new, and it looked as though it was politicising the civil service in an unacceptable way. I was critical of that at the time, and I think we have rowed back from that arrangement to some extent. At the time, however, things went even further than that. Some of the special advisers in Downing street were actually giving instructions over the heads of Ministers. At least two former senior Ministers are on record as complaining that their role was being marginalised. They were being kept out of the picture because policy was being passed from Downing street direct to the civil servants by special advisers, almost making the Ministers irrelevant. I am glad to say that that has changed.
- Time
- 21:45
- Source
- View in Hansard ↗
- Speaker
Peter Bottomley (Worthing, West) (Con)Conservative- Quote
- That was 12 years ago. At the time, what was the proper way for people to raise that issue and say that the situation was either ineffective or improper, or both?
- Time
- 21:45
- Source
- View in Hansard ↗
- Speaker
- Kelvin HopkinsIndependent
- Quote
- Well, it concerned me at the time. I have been a member of the Public Administration Committee for seven years, and we have discussed these matters on a number of occasions. I have made very strong criticisms of that mode of operating, which changed the nature of our constitution and the relationship between Ministers and the civil service. It was a great mistake. I have used stronger language than that many times, which I will not use now—my hon. Friends who are also members of the Committee have heard me use it—when talking about authoritarian regimes and the techniques they use to exert political control at every level. However, to an extent, we have rowed back from that position, which I very much welcome. I want to divide the role of ministerial adviser again. As my amendments point out, ministerial advisers come in two types: specialist advisers, who are experts who can give advice on technical matters that will help a Minister to do his job better; and political advisers or hacks—the sort of job that I might have done in a different regime. Long before I came into this place, I worked as a political adviser within the trade union movement. I used to use every opportunity to twist and turn politics as I wanted; that is what political advisers do. They act as advisers to Ministers—to one side; they do not instruct civil servants. That is why we want to use the term “ministerial adviser”. Such people give advice to Ministers—they do not act as civil servants—and they are divided into those two categories. If I may say this, it is a good day to bury special advisers, to coin a phrase. We should restore the proper role of the civil service as independent, impartial, neutral and equally able to serve Governments of all persuasions. Also, I hope that within the civil service there will be a range of views, so that good advice can come from all sides—in fact, from different sides of the argument—within the service itself. That is how it operated in the past and that is how it should operate again. These amendments would restore the proper status of Ministers, whose role has been played down. The Cabinet has not been the power it was in the past. I would like to see Cabinet government genuinely restored, so that politics is really debated and thrashed out at Cabinet level, and does not just come down from the political advisers surrounding a Prime Minister—any Prime Minister.
- Time
- 21:45
- Source
- View in Hansard ↗
- Speaker
Mr. Barry Sheerman (Huddersfield) (Lab/Co-op)Labour- Quote
- My hon. Friend and I share an interest in that history. When did we have something that he would describe as functioning Cabinet government? During what period was that?
- Time
- 21:45
- Source
- View in Hansard ↗
- Speaker
- Kelvin HopkinsIndependent
- Quote
- I do not wish to speak for too long, although I thank my hon. Friend for his intervention. This issue has been drawn to our attention by some former heads of the civil service who have been before the Select Committee. They reminded us that back in the days of the Wilson Governments, and perhaps those of the Callaghan Governments, there was a remarkable range of views within Cabinet. It stretched from Tony Benn and Barbara Castle, on one side, to Roy Jenkins and Shirley Williams, on the other, with several others in between. Within such Cabinets a real debate on policy took place, representing a spectrum of opinion. I am sure that the same was true of the Conservative party in times gone by, but our party certainly had genuine debate in Cabinet. It has also been pointed out that in times past the Cabinet would, typically, see some 200 policy papers a year—that is four a week, on average. Cabinet would debate those papers and reach some kind of consensus on them. I understand that in one of the more recent years, two policy papers went to the Cabinet. Considering two papers compared with 200 represents a change. I like to think that we should have a genuine debate in Cabinet, with strands of opinion, whichever party is in power—that should certainly happen when my party is in power. Those strands should represent the broad range of opinion within the large parties in our, essentially, two-party system—I apologise to the Liberal Democrats. That form of government was better than what we have had in more recent years—we might have avoided some mistakes, on all sides, had we had it. Special advisers should be replaced by ministerial advisers; we should have advisers giving advice to Ministers, not giving orders to civil servants.
- Time
- 21:45
- Source
- View in Hansard ↗
- Speaker
- Mrs. LaingConservative
- Quote
- It is pleasure to agree with almost everything that the hon. Member for Luton, North (Kelvin Hopkins) has just said. [Interruption.] I hope that I am not doing him any harm in doing so. It is sad that the idea of the special adviser was first invented to assist Ministers and civil servants, so that such a person could play a hybrid role between the civil servant and the political office and political duties of the Minister. I do not think that this is declaring an interest, but I should say that I was a special adviser from 1990 to 1994. I recall very well the mostly unwritten code that we observed carefully. There was no question in those days of special advisers telling civil servants what to do. I know that the Lord Chancellor would agree with my comments—were he in the Chamber—and those of the hon. Member for Luton, North, because he was one of the first special advisers when he worked for the then Mrs. Barbara Castle. He undertook that position with the same distinction that he has shown since, and there was no doubt whatsoever as to what special advisers did. What is sad is the fact that, as the hon. Member for Luton, North described, the Government decided in 1997 to change the role of special advisers and almost overnight increased their number from 38 to 70 and more. More importantly, they changed their role and allowed special advisers to give instructions to civil servants, thereby undermining the position of civil servants. It is a pity that we cannot have a full debate on that this evening. We have only five minutes left and I shall curtail my remarks so that others will have an opportunity to speak, but I would have liked a full debate on that very issue. The fact that I cannot demonstrates that what my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve) said when we debated the programme motion earlier this evening has proven to be totally correct. We could have gone on debating this tomorrow, because it is a very important matter.
- Time
- 21:45
- Source
- View in Hansard ↗
- Speaker
- David HowarthLiberal Democrat
- Quote
- rose—
- Time
- 21:45
- Source
- View in Hansard ↗
- Speaker
- Mrs. LaingConservative
- Quote
- Before the hon. Member for Cambridge (David Howarth) makes his speech—and I shall give way to him in a second—may I say that I entirely agree with his amendments 22 to 25, on restricted duties?
- Time
- 21:45
- Source
- View in Hansard ↗
- Speaker
- David HowarthLiberal Democrat
- Quote
- I thank the hon. Lady for giving way. In fact, I was simply going to ask her whether she would support amendment 22 in the Lobby. It lays down the principle that she was talking about, which is that civil servants should not be instructed by special advisers for precisely the reasons that she gave and because it undermines the proper relationship between political appointees and the civil service. If she is of that opinion, I would like to test the opinion of the Committee on that amendment.
- Time
- 21:45
- Source
- View in Hansard ↗
- Speaker
- Mrs. LaingConservative
- Quote
- I understand what the hon. Gentleman is saying. I do not think that it is necessary for the matter to be tested in the Lobby, but in principle I agree entirely with what he has to say. It is sad that the once noble role of special adviser—a person who served the civil service, Ministers, Parliament and therefore the people very well—has been so badly undermined by this Government over the past 12 years. I note that the Minister disagrees, but I hope that she will tell us right now that that balance will be redressed so that special advisers can go back to being proper special advisers again.
- Time
- 21:45
- Source
- View in Hansard ↗
- Speaker
- Dr. Tony WrightLabour
- Quote
- I shall be extremely brief. It is unfortunate—in fact, that is hardly the word—that we have reached a part of the Bill that has some real meat in it and there is simply no time to discuss it. I hope that the Government will say how we can deal with the rest of the Bill, because at the moment the Committee will be unable to do so. Over the years, we have had endless arguments about special advisers, and we do not need to repeat them now. Let us hope that we have got it out of our system, but surely we must agree that we have to know what special advisers can and cannot do. In a Bill that sets down the core values of our system of our government, we need to say on the face of it what special advisers can and cannot do. Surely we have to test the will of the Committee on that.
- Time
- 21:45
- Source
- View in Hansard ↗
- Speaker
- David HowarthLiberal Democrat
- Quote
- I agree entirely with the hon. Member for Cannock Chase (Dr. Wright) and I think that the way to test that opinion is to press amendment 22 to a vote, so I shall ask you, Sir Michael, if we can do that in due course. I should also mention very briefly new clause 15, which would at least require the Government to say what the limits on the numbers of special advisers should be. At the moment the Bill, as drafted, would allow thousands of special advisers to be appointed, which would entirely undermine the senior civil service and introduce an entirely different system of government.
- Time
- 21:45
- Source
- View in Hansard ↗