House of Commons Public Administration Select Committee Constitutional Renewal: Draft Bill and White Paper Tenth Report of Session 2007–08 Report and annex, together with formal minutes and oral and written evidence Ordered by The House of Commons to be printed 22 May 2008 HC 499 Published on 4 June 2008 by authority of the House of Commons London: The Stationery Office Limited £0.00 The Public Administration Select Committee The Public Administration Select Committee is appointed by the House of Commons to examine the reports of the Parliamentary Commissioner for Administration and the Health Service Commissioners for England, which are laid before this House, and matters in connection therewith, and to consider matters relating to the quality and standards of administration provided by civil service departments, and other matters relating to the civil service. Current membership Dr Tony Wright MP (Labour, Cannock Chase) (Chairman) Mr David Burrowes MP (Conservative, Enfield Southgate) Paul Flynn MP (Labour, Newport West) David Heyes MP (Labour, Ashton under Lyne) Kelvin Hopkins MP (Labour, Luton North) Mr Ian Liddell-Grainger MP (Conservative, Bridgewater) Julie Morgan MP (Labour, Cardiff North) Mr Gordon Prentice MP (Labour, Pendle) Paul Rowen MP (Liberal Democrats, Rochdale) Mr Charles Walker MP (Conservative, Broxbourne) Jenny Willott MP (Liberal Democrats, Cardiff Central) Powers The powers of the Committee are set out in House of Commons Standing Orders, principally in SO No 146. These are available on the Internet via www.parliament.uk Publications The Reports and evidence of the Committee are published by The Stationery Office by Order of the House. All publications of the Committee (including press notices) are on the Internet at http://www.parliament.uk/pasc Committee staff The current staff of the Committee are Steven Mark (Clerk), James Gerard (Second Clerk), Pauline Ngan (Committee Specialist), Louise Glen (Committee Assistant), Anne Woolhouse (Secretary) and James Bowman (Senior Office Clerk). Contacts All correspondence should be addressed to the Clerk of the Public Administration Select Committee, Committee Office, First Floor, 7 Millbank, House of Commons, London SW1P 3JA. The telephone number for general enquiries is 020 7219 3284; the Committee’s email address is [email protected] Public Administration Select Committee—Constitutional Renewal: Draft Bill and White Paper 1 Contents Report Page Summary 3 1 Introduction 5 Background: our involvement 5 Conduct of our inquiry 6 2 Civil service provisions 7 ‘A few clauses’ 8 Definition of a civil servant (clause 25) 8 Management of the civil service (clause 27) 9 The Civil Service Codes (clauses 30–33) 10 Exceptions from appointment on merit (clause 34) 11 Appointments to be made directly by the Crown 12 Senior diplomatic appointments 12 Appointments excepted by the recruitment principles 13 Special advisers (clauses 38 and 39) 14 Status and powers of the Civil Service Commissioners 16 Appointment of the Civil Service Commissioners (Schedule 4, Part 1) 16 Administrative and financial independence (Schedule 4, Part 2) 17 Investigations into the application of the Civil Service Code (clause 32) 18 Provisions not included in the draft bill 20 Promotion on merit 20 Ministerial obligations 21 Machinery of Government changes 22 Civil service: conclusion 23 3 More power to Parliament? 24 War-making powers 24 Treaties 27 Passports 29 Wider review of the royal prerogative 29 More power or status quo? 30 4 Conclusion 31 Conclusions and recommendations 32 Annex: Table comparing civil service provisions in draft bills since 2004 38 Witnesses 46 List of written evidence 46 Public Administration Select Committee—Constitutional Renewal: Draft Bill and White Paper 3 Summary We have previously published draft bills on the civil service and to legislate for other important ministerial powers—the ‘prerogative powers’—which are currently exercised without parliamentary approval. The March 2008 government white paper on constitutional renewal and the accompanying draft bill contain proposals in most of these areas. In this Report we make constructive suggestions for improving the Government’s proposals, to ensure that when a bill is presented in Parliament it will be a landmark piece of legislation. Our aim is to open up the secret powers of the Executive to parliamentary approval and scrutiny. We find much to welcome in the Government’s proposals for the civil service. After four years of consultation, it is now time to move to legislation. It is more than 150 years since the idea of a Civil Service Act was first mooted. The core values of the service—integrity, honesty, objectivity, impartiality—and its key characteristics—recruitment on merit and the ability to serve governments from across the political spectrum—have stood the test of time. The purpose of legislation would be to protect these core values and key characteristics against the kind of government that might seek to undermine them, in an environment where the understandings that exist now between civil servants, Ministers, and the Civil Service Commissioners had broken down. We make a number of suggestions to strengthen the provisions in the draft bill with this aim in mind. The Government’s proposals on the other prerogative powers within our remit are disappointingly limited, especially given the Prime Minister’s undertaking to entrust “more power to Parliament and the British people”. What proposals there are would instead ask Parliament’s permission to continue with something akin to the status quo, and they contain loopholes which would allow the Executive to bypass Parliament at their discretion. We acknowledge that it would be foolish to establish a parliamentary safeguard which imperilled the success of military operations, but we find that the Government’s draft resolution on war- making powers leaves too much discretion in the hands of the Prime Minister. We describe the need to seek retrospective approval for urgent military operations as the price of democracy, and as a risk that Prime Ministers should have to weigh up before taking the extraordinary step of entering into a conflict without a prior mandate from the House of Commons. Treaties are not like wars, where the ability to take a decision instantaneously can make a real difference to success. Parliaments in other leading democracies have a decisive role to play in the making of treaties. Yet we find that the Government’s proposed parliamentary safeguard could be ignored at will, and is therefore no safeguard at all. We urge swift progress on the Government’s commitment to legislate on the procedures for issuing passports and we look forward to seeing the results soon of a wider review of the prerogative powers. The Constitutional Renewal Bill, when it is finally presented to Parliament, should be a seminal piece of legislation, reshaping the relationship between Government, Parliament, the courts and the people. Our recommendations are designed to help ensure that this is the case. Public Administration Select Committee—Constitutional Renewal: Draft Bill and White Paper 5 1 Introduction Background: our involvement 1. In 1853 Northcote and Trevelyan laid the foundations for a professional and politically neutral civil service. In January 2004 we1 published a draft Civil Service Bill, reiterating their 150-year-old call for an Act of Parliament to safeguard their recommendations. In December 2004 the Government produced a draft bill of its own for consultation. 2. In March 2004 we published a draft Ministers of the Crown (Executive Powers) Bill, prepared by our Specialist Adviser of the time, Professor Rodney Brazier, to show a way of bringing within statute law the most important ministerial powers currently exercised under the royal prerogative without the approval of Parliament.2 We recommended the implementation of proposals to ensure full parliamentary scrutiny in three areas in particular: i. decisions on armed conflict, ii. the conclusion and ratification of treaties, and iii. the issue and revocation of passports. 3. In July 2007 the Government published a green paper on the Governance of Britain, announced by the new Prime Minister as a blueprint for “a new British constitutional settlement that entrusts more power to Parliament and the British people”.3 This was followed in March 2008 by a white paper on Constitutional Renewal, which included a draft bill.4 A Joint Committee of both Houses of Parliament has been established to consider the Government’s draft bill. 4. The white paper and draft bill contain proposals in most of those areas that we have covered in the past. The Minister for the Cabinet Office has described as “absolutely fair comment” our suggestion that the Government had looked at our “back catalogue” in order to inform the draft bill.5 This Report brings our particular perspective to bear on these new proposals, for the benefit of the Government, the Joint Committee, and the House as a whole. 5. This Report makes a number of constructive suggestions as to how the Government’s draft bill could be improved. This is only natural: we have campaigned over the years for legislation covering these areas, and developed detailed views of our own on the form that a statute should take. Any criticisms that we make do not detract from our certainty that, when the Constitutional Renewal Bill is presented in Parliament, it will be a landmark piece of legislation. It will open up some of the main prerogative 1 More accurately, our predecessor Committee. 2 Taming the Prerogative: Strengthening Ministerial Accountability to Parliament, Fourth Report from the Public Administration Committee, Session 2003–04, HC 422, p 31 3 HC Deb 3 July 2007, c 815 4 Cm 7342-II 5 Q 93 6 Public Administration Select Committee—Constitutional Renewal: Draft Bill and White Paper powers—the secret powers of the Executive since time immemorial—to parliamentary approval and scrutiny. Conduct of our inquiry 6. This has had to be a speedy inquiry, to enable us to inform the Joint Committee’s deliberations—it is required to report by July.