Lord Lisvane debates involving the Cabinet Office during the 2019 Parliament

Civil Servants: Reduction of Numbers

Lord Lisvane Excerpts
Thursday 24th March 2022

(2 years, 3 months ago)

Lords Chamber
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Lord True Portrait Lord True (Con)
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My Lords, I reject the first part of the question. I am absolutely delighted that my right honourable friend is bringing his insight to the Cabinet Office and I look forward to working with him. As far as consultants are concerned, yes, the Government are seeking to reduce consultancy spend. Central government and arm’s-length bodies spent approximately £1.5 billion on consultancy in 2021; that is why the consulting hub was set up last year to lead the consultancy reform programme. I can certainly assure the noble Lord and others that much attention will be given to that.

Lord Lisvane Portrait Lord Lisvane (CB)
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My Lords, if the Government wish the central Civil Service to be as effective as possible, whatever size it is, might they give a higher priority to reducing churn through appointments and postings, perhaps leading to greater stability, a retention of expertise and a greater and more effective corporate memory?

Lord True Portrait Lord True (Con)
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I think the noble Lord makes a very important point. There is a great deal of churn in the Civil Service and that reflects one of the things that the Government wish to address in order to give greater job satisfaction, to invest in quality training and to enable civil servants to deliver a modern work programme. One of the reasons to seek to squeeze out efficiencies is to enable us to invest in more front-line service and in exactly the kind of support referred to by the noble Lord.

Dissolution and Calling of Parliament Bill

Lord Lisvane Excerpts
Lord Lisvane Portrait Lord Lisvane (CB)
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My Lords, I had added my name to Amendment 2 in the name of noble Lord, Lord Wallace of Saltaire, but unfortunately it has not made it on to the Marshalled List that I have. I hope that is not an expression of editorial disapproval.

I congratulate the noble Lord on his ingenuity in bringing Prorogation within the scope of our discussions. As the Minister will know, I was a little sceptical about the view that Prorogation was outside the scope or relevance of the Bill. That was on two grounds. First, it was said that Section 6 of the 2011 Act excluded Prorogation. Of course, it may have excluded it, but what is excluded can be added by amendment.

The second ground of my scepticism was the intimate relationship between Dissolution and Prorogation. It is by no means unknown for Parliament to be dissolved while prorogued; I have not looked at the figures, but this may be the majority of cases in recent decades. Even if we go back to the relatively short period—the business period, as it were—of Prorogation after wash-up, there will be a period of time when the House of Commons cannot take a decision of the sort envisaged by my noble and learned friend in his Amendment 3. So I suggest that, although this may not be crucial, it is probably a useful procedural mechanism or precaution.

Legislation: Skeleton Bills and Delegated Powers

Lord Lisvane Excerpts
Thursday 6th January 2022

(2 years, 6 months ago)

Lords Chamber
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Lord Lisvane Portrait Lord Lisvane (CB)
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My Lords, I congratulate my noble friend on securing this debate, her excellent article in the Financial Times and her outstanding speech to move the Motion. I speak as a former member of the Delegated Powers Committee and as a current member of the Secondary Legislation Scrutiny Committee. I think, as has been generally agreed this afternoon, both committees have done an excellent job in highlighting this—not to mince words—blight upon the legislative process.

Of course, skeleton Bills, although a baneful phenomenon, are only part of the problem. It has for some time been routine for Bills of every sort to contain wide ministerial powers, subject to minimal parliamentary control and scrutiny. The Delegated Powers Committee does an excellent job, but it cannot hold back the tide. Understandably, we see these problems through the lens of the relationship between the Executive and Parliament, and the leaching of power away from Parliament by these means should be a matter of wide constitutional concern.

The Government’s own definition of “good law” is law that is

“necessary, effective, clear, coherent and accessible.”

We are dealing here with law that fails the “accessible” criterion, because when Parliament deals with the parent legislation it is so often not clear how delegated powers will be used—as they are too often for matters of principle and policy that should be in primary legislation.

The real losers are our citizens. We in this House may not represent them, but we can act in their best interests. They and business, industry, our national institutions and civil society need to know how the law will be changed, to have the opportunity to comment and make representations, and to know how it will end up applying to them. It is all the more surprising that the House that is elected seems to engage so little with these issues. At the very least, there is the powerful argument, which has already been mentioned, that an Administration of a different party will happily use extensive delegated powers that the party presently in power thought would be for its especial convenience.

Four minutes is not long enough to have a really satisfactory rant, although the present state of affairs certainly deserves it. We are agreed that things have come to a pretty pass, but, as noble Lords have said this afternoon, the real question is: what do we do about it? Most of the sophisticated suggestions about new procedures would probably require extensive amendment of the Statutory Instruments Act, passed in 1946—only yesterday, I should say to my noble friend—when secondary legislation was concerned only with detail and the Donoughmore principles were observed.

The Delegated Powers Committee could routinely report on Bills starting in the Commons when they are introduced there, as it did very successfully with some Brexit legislation. That is taking its recommendation in paragraph 154 a little further. We might have a Joint Committee on delegated powers, but that would depend on a greater degree of interest and enthusiasm at the other end of the building. We could simply vote down draft affirmatives that should have been in primary legislation, although we would then be operating on what I term the “Strathclyde caution”, despite the splendidly fierce words of the noble Baroness, Lady Andrews, a little earlier.

I have heard noble Lords say that there should be no more than two rounds of ping-pong and that there is some sort of convention to that effect. It is not so. For example, the Corporate Manslaughter and Corporate Homicide Bill, which I remember very well, had 10 exchanges—five on each side. So perhaps we should set ourselves the task of making the securing of improper delegated powers really inconvenient, even to the edge of double insistence—not over the edge, but within shouting distance. That might concentrate ministerial minds powerfully.

Lord Lisvane Portrait Lord Lisvane (CB)
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My Lords, I congratulate the noble Lord, Lord McLoughlin, on his chairing of the Joint Committee and the magisterial report that it produced. It was a pleasure to give oral evidence to that committee, and also, with my noble friend Lord Butler of Brockwell, to the Constitution Committee and the Public Administration and Constitutional Affairs Committee in the House of Commons.

The Bill now before us lays the FTPA to an unregretted rest. It also seeks to restore the status quo ante by what might be called a willing suspension of disbelief—whether that will be successful is another issue. But I suggest that, in its short life, the FTPA may have damaged constitutional expectations in a way that may not be easy to repair. This was explored in some detail in the excellent speech by the noble Lord, Lord Norton of Louth.

The expectation of what might be a matter of confidence used to be fairly wide: a Government that lost the Queen’s Speech in the Commons, or lost on an amendment central to the Speech or a Second Reading of a Finance Bill, would either have to secure a demonstrative vote of confidence or ask Her Majesty for a Dissolution—and of course the official Opposition could of course take the initiative. But under the FTPA, the agreement by two-thirds that there should be an early general election immediately relegated the big confidence issues to the second division. A Government could suffer a severe defeat, but unless the FTPA was engaged, or they lost the formal Motion of confidence envisaged in the Act, they could shake the defeat off.

My concern is that the FTPA has reset expectations on what is a matter of confidence in a way that cannot now be fully restored. The Minister said in opening the debate that of course a Prime Minister can designate an issue as being a matter of confidence, and Mr Gove said something similar in the Second Reading debate in the House of Commons, but it is not quite the same thing.

I have no doubt that the applicability of the Lascelles principles will figure in Committee, and indeed we have heard something of those this afternoon. Those who are uneasy about replacing the Commons’ statutory power under the FTPA with a purported revival of prerogative power will no doubt argue for a Dissolution to be triggered only by a vote in the House of Commons —with, no doubt, a simple majority, rather than the baneful two-thirds majority. Without, at this stage, expressing a view, might I offer a word of caution? If your Lordships decide that the decision should rest with the House of Commons rather than with the monarch upon an unconstrained request from the Prime Minister, it will be essential to specify the words to which the Commons must agree.

When in my former life I saw an early draft of the Bill for the FTPA, I was horrified. It said that only defeat on a Motion of confidence should be the electoral trigger. But how was a Motion of confidence to be defined? If it carried conditions, would it still be a Motion of confidence? I could see no more certain way of inviting judicial interpretation of whether a statutory requirement had been fulfilled, Article 9 or no Article 9. For that to happen in the charged circumstances of a looming general election would be disastrous.

I am glad to say that that problem was cured during the passage of the Bill, but it follows that, should your Lordships see fit to put the finger of the House of Commons on the trigger, there must be an explicit form of words in the Bill, with nothing left to interpretation. If your Lordships do wish to empower the House of Commons in that way, I suggest that the provision must be capable of doing two things: first, a check on a Prime Minister who is inappropriately seeking a Dissolution; and, secondly, a means of getting Parliament out of a situation where the Government of the day are simply treading water.

There is widespread unease about Clause 3 of the Bill, in respect not only of its intent but whether, as a matter of law, it can achieve exactly what it says. I do not see how a resilient argument can be made that a prerogative power, removed by statute and then restored by statute, can be a prerogative power of exactly the same character as the abolished power. I will study my noble and learned friend’s views on that very closely indeed.

It seems from proceedings in the House of Commons that the parliamentary authorities have taken the view that the matter of Prorogation is outside the scope of the Bill. That view was expressed by the Deputy Speaker in the chair on 13 September last year, and it meant that Mr Chris Bryant had to move for an instruction to the Committee of the whole House in order to discuss a new clause on that subject—on which proposal he was unsuccessful.

Having spent a while as one of those authorities, I was a little surprised at that view. Scope, or relevance, as noble Lords will know, does not depend on the Long Title of a Bill; it depends on what is in the Bill and what is very closely associated with what is in the Bill. I make no criticism whatever of the learned minds who came to that view—it is always tiresome to have the old and bold trying to second-guess you—but it seems to me that there are two factors that bring Prorogation very close to this Bill. The first is that in the FTPA, which of course was an Act about Dissolution, it was nevertheless thought necessary to include in Section 6(1) a saving for Prorogation. If the Bill now before us is resetting the clock, for Prorogation to be out of scope may thus be thought curious. I should say to noble Lords that I have no cunning plan for Committee or Report on how Prorogation might be covered by the Bill, but it seems to me that this is something which needs exploring a little further.

The second factor is that in normal times—if any of us now has a clear recollection of what normal times were like—it was not unusual to prorogue Parliament and then dissolve during the period of Prorogation, so the two processes were intimately related. This may indeed be something to explore further, and I much look forward to Committee on the Bill.