§ 5.40 p.m.
§ Lord Hooson rose to call attention to the relationship of government and Parliament with the Civil Service; and to move for Papers.
§ The noble Lord said: My Lords, when I put down this Motion I realised that, unlike a number of your Lordships who will be taking part in the debate, I have no experience of government. I have no detailed knowledge of the Civil Service. I shall be adopting very much the parliamentarians' view of the relationship of Government and Parliament with the Civil Service. I also wish to point out that I had in mind in putting down the Motion not only that it was timely, as I thought, in the light of recent events, but also to demonstrate my concern about the immediate relationship and the relationship in the fairly foreseeable future as opposed to the long-term relationship.
§ I say this because, on a previous occasion in your Lordships' House, I have referred to the fact that there are forces, I believe, inexorably driving this country in the direction of what may be described as a new constitutional settlement. The reasons are most eloquently set out in that remarkable book The Dilemma of Democracy by the noble and learned Lord, the Lord Chancellor—a book, as I have pointed out previously, that was written when he was in opposition and not when he was in government. The noble and learned Lord sets out there the forces that are at work in this country which will eventually drive us, I believe, into a state of affairs where we have a codified constitution.
I shall adopt virtually as the text for my opening remarks a quotation from an article by Mr. David Watt in The Times newspaper of Friday 7th February under the heading "Whitehall pact in need of repair". In it appear these words:
For better or worse, we have to live with professional, full-time politicians who live and die by the media and cannot afford to accept formal responsibility for more mistakes than they have to. As a result, we are gradually learning to live with an identifiable, and to some extent separately accountable, Civil Service and we can expect to face a parliamentary system which becomes more and more fluid, unpredictable and inquisitorial".
§ I ask myself the question: is this view correct? I believe it to be so. The three characteristics of civil servants, the traditional ones of anonymity, secrecy and permanency, have probably at the very least been modified very much over the past decade. The theory of government in this country, on which the so-called pact depends, is that government exercises the will of 1089 Parliament through the authority of the Sovereign and that the civil servants are the administrative arm of the Government, the Government having behind them the full weight of the Sovereign acting in Parliament. So the duty of the civil servant has always been said, traditionally, to be the Crown in Parliament. But, in practice, things have become very different.
What are the factors responsible for the weakening and/or the potential breakdown of the constitutional pact? I shall mention some of them. First, the growth of the power of the media in a modern sophisticated society must be among the more important. Is Mr. David Watt correct in stating:
Most inside information disobliging to governments does not come from the Tisdales and the Pontings but by way of discreet 'guidance' from senior Civil Servce colleagues who do not see why they should take all the flak for their ministerial masters".
§ The second reason is, I believe, this. The traditional arrangements presume a single party system—a single party in government and a single party in opposition. However, we have been witnessing the slow but sure breakdown, within this country of the rigid two-party system and the realisation by Parliament that its main role should be to make things difficult for Government and to be a stouter critic and check on the Executive. This was a view eloquently developed by my noble friend Lord Grimond in a debate in this House about a fortnight ago.
§ The growth of the Select Committees in the other place and the independence of government that some of them increasingly tend to show is simply a manifestation, I believe, of this longer term trend. My noble friend Lord Grimond expressed some doubt about the direction that the Select Committees were taking, saying that he had initially been one of their supporters but was worried about modern trends. It seems to me that the Select Committees were set up because of a realisation by Members of Parliament of how poor their resources were individually in comparison to the resources of Ministers. The power of the group is very much greater than the power of the individual. It is my belief that Question Time in the other place has become less formidable to the Government than it used to be. And, if I may venture a view, Question Time in your Lordships' House, with the greatest respect, I find of very little value at all.
§ The third factor is the considerable breakdown in consensus politics. There is a great deal of difference in the basic assumptions made, for example, by the Conservative Party in its modern guise and by the Labour Party in its modern guise. There have been clear signs that some civil servants have thought it their duty to try to thwart, for example, left-wing Ministers. There have been statements, for example, by Mr. Brian Sedgemore, about civil servants in relation to Mr. Tony Benn when he was a Minister. Others have thought it important to try to expose Right-wing tendencies in Ministers in the present Government. The present Government, and perhaps to a lesser extent, the Labour Party when in power, seem to have wanted civil servants to demonstrate conviction in implementing government policies. The phrase, "Is he one of us?" is not unknown in an attitude towards civil servants. There has been perhaps a general undermining of the impartiality not only in relation to civil servants but also in relation to 1090 quangos, the BBC, and so on. It is a general trend of our time. The result of this trend within the Civil Service is perhaps a tendency to want more politicised civil servants. The long-term implications of that are very important.
§ Fourthly, there is a tendency to delegate tasks to civil servants which make them more directly accountable particularly with regard to such matters as development of the Welfare State, the financial management initiative, and so on. Fifthly, there is the increased blurring of distinctions between policy, which is the province of politicians, and administration, which is the province of the civil servants, and also the emergence of the management role.
Sixthly, and perhaps more important, the doctrine of ministerial responsibility seems to have become increasingly a fiction behind which the Civil Service can hide its decisions and behind which Ministers can also now hide. In the debate to which I have previously referred that took place in your Lordships' House on 12th February on parliamentary and democratic systems of the United Kingdom, two distinguished parliamentarians, the noble Lord, Lord Houghton, and the Leader of the House, the noble Viscount, Lord Whitelaw, both spoke. I quote first the noble Lord, Lord Houghton, who said at col. 241:
In the light of recent events, I think I must now mention the Civil Service in its relationship to Parliament. I think we shall be getting into very deep water if we go on much longer as we have been recently in relation to our civil servants. I see no way of making civil servants answerable to Parliament for what they do in the performance of their duties".
The noble Viscount, Lord Whitelaw, after referring to his experience, said, at col. 260:
I believe it is part of that assistance that it is given on a confidential basis to Ministers and, if it were not, I do not believe it would work. I am very jealous of that and very nervous—I agree with the noble Lord"—
that is, the noble Lord, Lord Houghton—
about some of the trends which have looked as if they might go in the opposite direction, because I do not believe that that would be in the interests of good government".
§ Therefore in the long-term interest of this country it is very important that we should now examine afresh the assumptions on which the so-called Whitehall pact has governed each side of the triangle on which constitutional government in this country rests. At the apex is the Crown; one side of the triangle is Parliament; the other side of the triangle is Government; and the base of the triangle is the Civil Service.
§ The theory on which the traditional duty of the civil servant is described as being the servant of the Crown in Parliament is easy to explain in theory but is surely somewhat outdated. In theory the executive powers of the Crown are exercised by Ministers who are answerable to Parliament. However, this Government—like so many of their predecessors—have long abandoned adherence to the full theory of Ministerial responsibility. Not since the resignation of Sir Thomas Dugdale over the Crichel Down affair has a Minister faithfully discharged in the traditional manner the theory of ministerial responsibility. When there was a breakout in the Maze Prison (I think it was last year or the previous year) in Northern Ireland, Mr. James Prior felt no duty to resign—he explained that 1091 he knew nothing at all about the matter—for reasons which we perfectly understand. But the theory has really gone by the board.
§ The Earl of Longford
My Lords, may I remind the noble Lord that the noble Lord, Lord Carrington, resigned over the Falkland issue?
§ Lord Hooson
My Lords, I think that this is not quite dealing with the same point. When Mr. Leon Brittan, for example, resigned recently—which is perhaps a greater parallel—it was because of his own improper authorisation of the leaking of the Solicitor-General's letter, and not because one of his civil servants had made a mistake or done something improper. It was his own act, and his own view. The noble Lord, Lord Carrington, was resigning over his own viewpoint, and not because of his responsibility within the department.
§ Lord Hooson
My Lords, the Prime Minister, as has been pointed out, did not feel in any way obliged to resign or even take lesser responsibility for the mistakes which she impliedly admits were made by her senior officials, Mr. Powell and Mr. Ingham. Therefore given this climate, which is only indicative of a trend, the House of Commons has been bound to take steps which ultimately suggest that civil servants have an overriding obligation either to Parliament itself or to the electorate as represented by Parliament. Civil servants, who are increasingly known and named, are bound to wish to a degree to co-operate in this process if sometimes they are impliedly or specifically blamed by Ministers and are identified, because evidence before a parliamentary committee is a very good forum for defending oneself in public.
I believe that verdicts of juries over the past few centuries have been as important as Acts of Parliament themselves as landmarks in the changing constitutional balance within this country. Lord Devlin rightly observed that a jury is a parliamentary rather than a judicial body though it is called upon to discharge a judicial function. Throughout the history of recent centuries the jury in England and Wales has had a happy knack of laying down important markers to constitutional change through verdicts in specific cases.
Thus the Ponting case verdict proclaimed and published a clear reluctance, at the very least, to accept any longer the simplistic traditional view that a civil servant's exclusive duty in all circumstances was to the government of the day. A great deal more, and unjustifiably, has been claimed for the verdict in the Ponting case but I think that it is always dangerous and foolish to draw more than the obvious and minimum inference from a verdict in a specific case. But it is there to be drawn in that case.
The present situation is obviously potentially dangerous. If every civil servant is to be allowed to judge for himself what is the public good and then, having judged, to be allowed to put his so-called public interest duty above his loyalty to government, then one can ask the question: where does it end? On the 1092 other hand, we have been among the first people to criticise the German civil servants, the German military—when they were called upon to serve in the Bündestag when it was eventually taken over by the Nazi Party and Hitler—that they did not act in some way to try at least prevent him overthrowing the democratic safeguards in their constitution.
Can we really contemplate the view of Mr. Michael Elliott of the Economist, who has argued,one should extend the concept of civil servants having a duty to the public beyond the mere provision of state benefits to one of seeing that there is good government"?He has argued more recently that it would be mad to constrain the Civil Service,from changing, probing and judging government in the public interest".What are the immediate steps that should be taken to improve the situation? Perhaps I may say from these Alliance Benches that if we had an Alliance government the relationship of the Civil Service to that government would be very important. It is possible that if there was an Alliance government we would have a reduction in adversarial politics. There would be more of the problem-solving approach. The relationship—the present pact—between the Civil Service, the Government and Parliament depends to a very large extent on the background of adversarial politics.
§ Lord Cledwyn of Penrhos
My Lords, is my noble friend saying to the House that he has forgotten Lloyd George entirely?
§ Lord Hooson
My Lords, no. I never forget Lloyd George any more than the noble Lord, Lord Cledwyn, does. But, on the other hand, unlike him I do not end my life with Lloyd George. We have moved on a considerable period of time and in ideas since his day. But if the prime blame rests anywhere for the breakdown, or at least the modification, of the so-called Whitehall pact it rests with government and the refusal of Ministers to accept full accountability to Parliament.
I believe that a very important immediate step that should be taken is to repeal Section 2 of the Official Secrets Act; and, more importantly, that a very broad freedom of information Act should be enacted. This should clearly set out the rights of Ministers, Parliament and the public through the media in the field of information, and what the duties of civil servants are towards them. For example, the factual and analytical background to major policy decisions should surely be published, as the Croham directive of 1977 suggested. If one casts one's mind back, the problems which have arisen with so-called leaks and so on have mainly or almost entirely been over factual information. What happened about the "Belgrano"? What happened in relation to the Westland affair? What were the true facts—not the advice on which the approach to the facts should be made but the facts?
If Ministers accept full accountability for their actions to Parliament, then I think that we could insist that civil servants owe their primary loyalty to Ministers. But the decision on that rests politically. For example, when in recent times Mr. Heseltine disagreed with the Prime Minister and advanced his particular 1093 views on the Westland affair he was, it is said, breaching the collective responsibility of the Cabinet and any Prime Minister would have been entitled to send for him and demand his resignation. But this is not what happened. What happened was that there was a leak of information through another Minister, and so on. There were internecine battles between Cabinet Ministers, which surely illustrated the breakdown of Cabinet responsibility.
The question arises: what are the duties, if any, of civil servants to Parliament? Do they owe any duty to Parliament if Ministers lie and a civil servant knows that it is a lie? Do they owe any duty to Parliament if the Minister refuses to be answerable to Parliament? In other words, what are the limits of a civil servant's duty to Government? Has the House of Commons, through its Select Committees, the right to question and cross-examine any civil servant on any matter? For example, recently the Defence Committee cross-examined Sir Robert Armstrong. Should the committee, in fact, have sent for the Prime Minister? Was she the correct person to question about these matters rather than the civil servants?
Guidance was laid down in February 1985 by Sir Robert Armstrong, after the Ponting case, and it is all right so far as it goes. But does it cover the difficult situations which in practice arise? The part played by civil servants in the recent disclosure of the Solicitor-General's letter poses a dilemma. The guidance from Sir Robert Armstrong is:The duty of the individual civil servant is first and foremost to the Minister of the Crown who is in charge of the Department in which he or she is serving.How does that general rule help a civil servant to decide how to react to a particular ministerial request; for example, when a Minister for industry authorises disclosure of another Minister's letter—the Solicitor-General's letter—without the latter's agreement? The Prime Minister later agreed that it should,have been released into the public domain.and urgently.
Is there not a need for a much more practical and particular code of ethics? Surely in the present situation there is need to publish the guidelines for Ministers which, we are told, are issued to Ministers which guide the corresponding responsibilities which Ministers have in relation to civil servants; and, indeed, guidelines for Ministers in their relationship with the media. Why should these guidelines be kept away from the general public? The public, and indeed the Civil Service, have a right to see them and to be informed.
Finally, Sir Robert Armstrong's guidelines lay down what seems to be perfectly acceptable. In the event of a civil servant being faced with a fundamental issue of conscience they state what the civil servant should do; eventually having to resort to the head of department as a last resort. But surely there must be some independent element here. I should have thought the Parliamentary Commissioner, or someone like him, could be involved so that eventually there could be an appeal from within the Civil Service to a Parliamentary Commissioner in the event of an unusual circumstance arising where there is a fundamental issue of conscience.
1094 I think I made it clear that my approach to this is a concern for a repairing operation, but not a long-term one. I believe that a long-term solution to this is bound up with all kinds of other issues which I feel, for reasons I advanced on another occasion, are slowly but surely coming about. I should like to end this introduction with one more quotation from the article by Mr. David Watt:The question is rather how we maintain or reacquire (since we seem to have lost them) the minimum requirements of good administration: considered, practical policies executed efficiently by people who believe in them for people persuaded to give them a try. How, in fact, do we reunite the constitutional parts of government?My Lords, I beg to move for Papers.
§ 6.4 p.m.
§ Lord Shackleton
My Lords, we each have rather longer than usual for a short debate but I hope not to take up too much of your Lordships' time. I must make a few comments about the speech of the noble Lord. After his opening remarks I have come to the view that the only thing I should do is thank him for introducing the debate, because I disagreed with so much of what he said.
The resignation of the noble Lord, Lord Carrington, was, of course, an absolutely archetypal, typical resignation because he judged that there had been a failure on the part of his department and that it was a failure for which he was responsible. I personally greatly regret that resignation and I have always thought that one of the great losses resulting from the Falkland Islands war was that of the noble Lord, Lord Carrington, as Foreign Secretary. Quite a number of people—certainly I did—tried to persuade him not to go. However, it was a resignation.
The noble Lord's opening remarks did smack rather of what might be called an idiosyncratic Liberal point of view from members of a party which has not, sadly, actually participated in Government for a long time. It is worth noting that in this debate no less than four former Cabinet Ministers are taking part. We will, I am sure, seek to put views from our own experience and comment on some of the matters. Nonetheless, the noble Lord has raised an important issue. His concluding remarks were on how we should restore the situation—if it needs restoring—and whether it is restorable with a Government where, as he pointed out, there was a collapse of collective responsibility of a most notable kind. I find it inconceivable that Mr. Heseltine was allowed to go on for so long without being called to order. However, I do not propose to follow some of those points and nor do I think that the situation is as desperate as the noble Lord thinks.
I should like to start by referring to the debate we had on 5th December, just over a year ago, on a Motion on the Civil Service tabled by the noble Lord, Lord Boyd-Carpenter, stressing the importance of a dedicated, efficient Civil Service. That is something we all seek to have. On that occasion a number of noble Lords took part, notably the noble Lord, Lord Allen of Abbeydale—and I certainly took part—who pointed to the grave disquiet in the Civil Service at what was happening. It is necessary to take that into account and to look at the evidence.
I do not propose to spend very long on this point, but it is worth reminding the House that the mistakes 1095 the Government made over GCHQ are acknowledged by most people, including members of the Government, as being very serious indeed. These included their treatment on pay, the abolition of the Priestley principle, the abolition of the Civil Service Department and a number of measures which have caused a great deal of disquiet to which the noble Lord, Lord Allen of Abbeydale, who is a former Permanent Under-Secretary at the Home Office, drew attention. I certainly said that morale could not be lower. I regret to say that it could be lower and that comes out in the evidence.
I am not sure whether the noble Lord, Lord Hooson, has taken the opportunity of reading the evidence that has been given to the Treasury and the Civil Service Committee's sub-committee, of which a great deal is immensely valuable. I see no greater or more valuable development from Mr. Crossman's ideas—it was Mr. Crossman who was the chief architect of setting up departmental committees—that reveals how clearly the Civil Service works and brings out the problems which confront it. One need only look at the evidence of the First Division Association of Civil Servants who, after all, are senior in the policy field of civil servants, to realize how much disquiet there is. They are concerned, in a number of directions, to have a better relationship with Government. They quote, and it has often been quoted, the statement of the noble Lord, Lord Bancroft, that when praise is given it is given through clenched teeth. They quoted that, and I quote it again now.
I think that the Government—because they have made statements—are anxious to improve the morale in the Civil Service. However, I am bound to say that it is low and much of the responsibility rests on the present Government. There is anxiety about politicisation—a horrid word which I cannot properly pronounce—of Civil Service appointments. The noble Lord, Lord Hooson, referred to the fact that as regards a particular appointment there was a rumour that an individual was not promoted because a touch of Keynesianism was detected in his outlook. I do not know whether that is true. Nor, when it comes to the selection of permanent secretaries, do I entirely blame a Cabinet Minister for seeking the right person. Nonetheless, there is a danger if it goes too far.
As regards the appointments which have been made, there is no doubt that the senior civil servants at permanent secretary levels are entirely worthy and entirely able to fulfil their role and I have no doubt that they would fulfil the same role effectively with another government.
Those of us who have been in government before a general election will have observed with interest the devotion of our civil servants to the cause of the government which they are serving even if they are thinking there may be a change, and at the same time their wise preparation for a future government even to the extent of thinking out the type of issues that will be raised, having studied the manifestos. They used only have to consider two, now perhaps they will have to consider four—I do not know what the possible future governments will be. There is little doubt that they still stick very much to the old idea of a non-partisan Civil Service regardless of their personal views.
1096 I have quoted, and I quote again, the example with regard to my own private secretary. I did not know his politics; I assumed that he was probably a Conservative or (shall I say?) a Liberal—I do not know whether there were Social Democrats at that time. One day I went into the outer office and one of the girls said, "Roy won't like that". I said, "Why not?" In fact, my Lords, I have given his name away; I should not have mentioned his name—it is a non de plume. She said, "He is ever so red. He is much redder than you, Minister!"
I am sure that those of us who have been in government can confirm the total impartiality of the Civil Service. However, there is grave disquiet. There is no time to go into the whole of the FDA evidence but, as the noble Lord, Lord Hooson, mentioned, they would like to have somebody like an ombudsman. Indeed, the previous permanent secretary—was it Sir Douglas Wass?—advocated that there should be an inspector general to whom matters could be referred. I have my own solution as to what I should like to see when I come to examine some of the issues that are concerned with the so-called "leak" or, as Sir Robert Armstrong prefers to call it (and I think correctly so), the "disclosure".
Sir Robert Armstrong could not have made clearer in his evidence to the Select Committee—the evidence has not yet been published and therefore I do not think I can quote him—that the whole episode was regrettable. I would say that it was deplorable and I do not believe that any Member of your Lordships' House thinks otherwise.
When the Prime Minister said that the facts are sometimes stranger than fiction perhaps I am unique in believing that what she said was so. It is the most extraordinary imbroglio that I have ever come across. Everyone I know who has been a Minister or senior civil servant is amazed at what happened.
I do not know whether the officials, who only had an hour in which to make up their minds—they had no opportunity to appeal to anyone—even knew that the Solicitor-General's memorandum had a particular secrecy of its own. I am bound to confess that when I was in the Cabinet I did not know that and I have talked to one or two other ex-Cabinet Ministers who also did not know that. Maybe we were very incompetent. What was objectionable—and it would be objectionable by any standards in any community and industry—was the leaking of a memorandum from a colleague without telling him and without admitting that that was being done.
The next question is: has the system failed? This particular issue has been well taken care of. However, I am bound to agree with the noble Lord, Lord Hooson, that Sir Robert Armstrong's first memorandum on the subject was not entirely satisfactory. Let me say that I have the highest opinion of Sir Robert Armstrong. He has served successive governments. No one knows the system of government better than he does. My only criticism is that he carries too heavy a burden. However, in his first statement he said:when having been given all the relevant information and advice the Minister has taken a decision. It is the duty of civil servants loyally to carry out that decision with precisely the same energy and goodwill, whether they agree with it, or not".1097 Earlier he had said:The civil servant has no constitutional ability or role distinct from that of Ministers".Whether or not we use the word "constitutional", I believe that the Civil Service has a role. It may be that 99 per cent. of the time civil servants should serve their Ministers. However, when it comes to certain actions which are objectionable—not just contrary to policy—then in my view they have an obligation. I cannot believe that my permanent secretary would have allowed me to have done what Mr. Brittan did. I simply do not believe that he would have allowed me to do it any more than the chairman of my company would have allowed me to do it and to conceal the fact that I had done so. In the evidence given by Sir Robert Armstrong's department—and I commend the reports of the Select Committee chaired by Mr. Austin Mitchell because they are very thorough and interesting—he said—
§ Baroness Seear
My Lords, I am extremely sorry to interrupt the noble Lord in his most interesting speech, but will he explain why he used the word "allowed" which seems to me to be extremely important in this context?
§ Baroness Seear
My Lords, the noble Lord used the word "allowed"; he said that his permanent secretary "would not have allowed the Minister". It seems to me to be the crux of the matter.
§ Lord Shackleton
My Lords, I shall tell your Lordships exactly what I mean. One's relations with one's civil servants are personal. He would say, "Minister, you can't really do that", and I would listen to him. However, in certain circumstances he may feel obliged to take the matter further. I am using the word "allowed" in a general and not in a legal sense. He cannot stop me doing it but he can complain. If I may, I should like to follow this argument which is a rather careful one.
In the evidence of Sir Robert Armstrong's department to the Select Committee they go on to say:As advisers to Ministers, civil servants have a duty to give honest and impartial advice without fear and favour. But once a Minister takes a decision, civil servants have a duty to abide by his decision, subject to the law, and to give effect to government policies … If a civil servant has sincerely-held doubts about the propriety of a policy or action,"—and I stress the word "action"—he does not need and should not try to carry the burden alone".The two civil servants in the Department of Trade had to carry it alone and they sought some comfort by referring it to No. 10. We do not know what took place in that transaction, but they only had an hour and a difficult decision to make. A civil servant not only has an obligation to fulfil the law, but an obligation to uphold high standards of government; and it should be possible in certain circumstances for him to go to the Cabinet Secretary who would approach the Prime Minister. As to whether or not there should be a different code of ethics for Ministers (and of course new Ministers receive instructions on behaviour, instructions which I believe are never published and 1098 that was the point to which the noble Lord, Lord Hooson, was referring) there is nonetheless no doubt that the average permanent secretary would have been able to persuade anyone except a lunatic Minister that it was improper to do it.
However, we must look at the timing in this case because that is really the issue. Even the Secretary of State for Trade and Industry himself—and I think it deplorable that he agreed to this—had to be telephoned and did not really give the matter proper consideration. The two civil servants then rang No. 10 and sought some kind of comfort. We should recognise that there is a role for civil servants. Indeed, the permanent secretary as the accounting officer has a role which is, if necessary, different from that of his Minister. Although I stand by the general description of what Sir Robert Armstrong said, I think that some amplification of this is necessary.
I shall not keep your Lordships for more than another minute or two. The question is: what do we do at this particular moment? First, I think that the Cabinet Secretary has too heavy a task. That is apparent. Although he is a remarkable man and discharges it with great brilliance, to be the principal Civil Servant adviser to the Cabinet and to the Prime Minister, and to run the whole Civil Service, is too much.
Going back, let us face it, to Sir Horace Wilson, we have in the past seen senior civil servants with too much power. Indeed, there were criticisms of the head of the Treasury when Helsby was there. We need a third arm. One of the mistakes of the Government was to abolish the Civil Service Department and not to reappoint a permanent secretary who was head of the Civil Service, like the noble Lord who is likely to follow me. It was my fortune, as the first Minister in day-to-day charge of the Civil Service Department, to have Sir WilliamArmstrong as my permanent secretary. That is the first thing I would say; that he would function alongside the permanent secretary to the Treasury and the head of the Foreign Office.
Next, should there be a code of conduct? They are terribly difficult to draw up. The First Division Association would like to see one. Perhaps we ought to have one. I should like to refer briefly to the Official Secrets Act. I am nervous about substituting a freedom of information Act. It is an easy thing to say. I always thought that one of the advantages of the Official Secrets Act was that it was almost impossible to understand what it meant. Now and again we had a situation such as where Mr. Ponting—and I do not take up any position to support him—gets acquitted. This may not have been a bad thing in terms of freedom, but someone who leaks information in future may still be convicted and go to prison.
What does a freedom of informatioin Act mean? If the noble Lord, Lord Hooson, had had the time he might have been able to explain it more fully. They have them in other countries such as Australia and Canada, and for all I know they work very well. But it is imperative that the working relationship between Ministers and civil servants, and the advice given, and what goes on in Cabinet, should remain confidential. I only regret, as a former member of the Radcliffe 1099 Committee looking at the publication of ministerial memoirs, that that confidentiality is breached so often by Ministers.
The Government should take a serious look at the situation. We do not want people's heads to roll on this question. I personally see little advantage in summoning more officials to appear before a Select Committee, but that is a matter for them and the last thing I dare to suggest is how a Select Committee carries out its activities. But there are certain things which I believe must in the public interest remain confidential.
I should like to see a more determined attempt by the Government to seek to restore the morale and understanding of officials. We know that recruiting is not going as well as it should, and this Government carry a heavy burden of responsibility for what I believe is a serious decline in the morale of the Civil Service. Secondly, we need—and this is one of the purposes of the noble Lord, Lord Hooson, although I did not go far with him—a little more clarification as to the role of the civil servant. I have talked to permanent secretaries who believe they must carry out their duty if they have to deal with a situation where not only is something unlawful involved but something immoral. My sympathy is with these poor civil servants who are caught with only an hour. And the blame?—we know where it rests.
§ 6.25 p.m.
§ Lord Bancroft
My Lords, I rise following two notable speeches. The one of the noble Lord, Lord Hooson, delivered with great lucidity, force and elegance, and with which I almost, but not totally, disagreed; and Lord Shackleton's speech, with which I almost, but not totally, agreed. I therefore stake out my position to begin with. The noble Lord, Lord Hooson, implied that the system is beginning to break down; that a new constitutional settlement might be necessary; that the triangular pact is in danger of erosion, if not collapse. Now I would be a rich man if, every time someone had said to me, "The system is breaking down", or, "Things will never be the same again", they had given me a fiver. I should have been a very rich man indeed.
One has to look at the present position of the Civil Service, Parliament, and the Government in broad, historical terms. All I should like to say, following up Lord Shackleton's speech, is that I entirely agree with him, and indeed the noble Lord, Lord Hooson, that the Official Secrets Act has long been discredited, but I would not myself replace it with a freedom of information Act for some of the reasons that the noble Lord, Lord Shackleton, explained.
I find myself in an invidious position on the question of whether or not one should have a head of the Civil Service and a separate Cabinet Secretary. All I would say is what I have already said in another place, that the two posts have one similarity in that they are both extraordinarily sensitive; otherwise they are totally different. The Cabinet Secretary necessarily must be the intimate adviser of the Prime Minister of the day, and must be at his or her beck and call, and rightly so. 1100 The head of the home Civil Service has a role as the head of a profession, and a representational function both to Ministers and to other constituencies as well.
Perhaps I had better put my cards on the table and confess that I am sufficiently old fashioned to believe that the pact, the system, the settlement, is under strain but is not actually breaking down. I believe that the desired relationship between Ministers and their officials should still be what I call the classical one; namely, civil servants, for their part, are recruited by open competition; are promoted on merit; are not required to behave with impropriety; enjoy a reasonable degree of security, and with adequate but modest rewards; Ministers, for their part, should refrain from the political preferment of officials, enjoy non-partisan support from them, and protect them as, effectively, agents of Ministers.
I am only too well aware, particularly in the light of Lord Hooson's notable speech, of the developments which are cited as impairing, if not perhaps exploding, this classical relationship. He has cited a number: the increasing power of the media; the increasing growth of the professional politician; the, as he sees it, erosion of the old concept of ministerial responsibility, on which I do not go all the way with him; and there are a number of other developments including, for example, the financial management initiative which increasing places open answerability on officials.
There is also—a point which has been mentioned—the appearance of officials before Select Committees of both Houses, nowadays virtually always in public. There it has been possible to strike a happy medium thanks to the common sense of both the parliamentarians, on the one hand, and the civil servants and their Ministers, on the other. I have seen it in a curious way from both sides of the table and it has been interesting. But the job of a civil servant when he appears before a Select Committee in my view is that he explains, he does not defend or justify. That is for the politician, the Minister.
I do not regard these developments—many of which I welcome—as striking at the root of the relationship as I have described it. In one form or another it is fair to say that they have been with us for a long time. I am thinking particularly of the Select Committee development, which is really an extension of what accounting officers have been doing to the Public Accounts Committee under successive chairmen since the year dot. I still regard as totally valid the limpid definition of the role of the civil servant in the 1853 Northcote-Trevelyan report:The great and increasing burden of public business … could not be carried on without an efficient body of permanent officers, occupying a post duly subordinate to that of Ministers … yet possessing sufficient independence, character, ability and experience to be able to advise, assist and, to some extent, to influence those who are from time to time set above them".Reference has been made by both noble Lords who have spoken to notes of guidance—I regard that quotation as a very good note of guidance—for both Ministers and officials which are revised and reissued from time to time. Like the noble Lord, Lord Hooson, I wish they were published and publicised more. Sir Robert Armstrong's memorandum last year was, I thought, a good piece of work—if that does not sound patronising—and is a good example of what I have in mind of something that was published and publicised. 1101 There are others, as was noted, including guidance for Ministers. I, too, should like to see more of those published. It should be part of explaining what I call the classical position.
Reference has been made to the Westland episode. There is a tendency, not in this House but elsewhere, to regard it as again calling into question the fundamental relationship between Ministers and officials. It was a decidedly rum affair. It has been left with two ministerial casualties on the uneasy basis that their resignations were unnecessary and that it all turned on misunderstandings between four unfortunate civil servants individually named. One must have sympathy for them. The episode also included citing named civil servants as witnesses to the veracity of the Secretary of State. In each case that is role reversal with a vengeance. Apart from the tragedy of the ministerial resignations it is deeply sad that on ministerial instructions the Civil Service should have been sucked into involvement in political intrigue which can only bring discredit on the whole process of government and on Ministers and civil servants.
Ministers should not require civil servants to do things which are unlawful. If, short of that, a Minister should instruct an official to do that which is improper, the official should take the action open to him or her under the Armstrong memorandum, in particular bringing into play the department Permanent Secretary. It is always possible for officials to note the file in the event of their being requested to take unprofessional action. But it is not open to them to adopt the unprofessional course of reaching for a brown paper envelope, the copying machine and the address of a newspaper or of a Member of Parliament. In the last and desperate resort there is resignation. You might say that that is easy advice from an elderly buffer who has retired. Your Lordships would be quite right.
I am similarly old-fashioned in my view of the relationship between Parliament and the Civil Service. It is right that officials should appear before Select Committees with clear guidance as to their role, just as, as I have said, Permanent Secretaries have been appearing before the Public Accounts Committee. But I must confess to an impatience with civil servants who profess a quite other-worldly rectitude and chastity. Their admonishing hands are apparently unstained by the abrading influences of Whitehall and Westminster. They profess a higher answerability above and beyond the elected Government of the day direct to Parliament itself.
I hope that what I shall say will not shock your Lordships, but all of us know that in practice the parliamentary process involves both the Government and opposition parties in presenting their policies in as fetching a light as possible. Inevitably this involves a degree of suppression and misrepresentation in which—let us be robust about this—the official on occasion cannot help but get involved. But almost without exception the degree is kept well within bounds by conscience, by common sense and by the heavy sanctions (of which we have seen recent evidence) which Parliament brings to bear against Ministers and other members who might be regarded as misbehaving. It is this aspect of reality which has 1102 moved me to say that officials should not wear their necessary virtue on too prudish a sleeve.
In conclusion I should like to say two things: one I should like to address to the Opposition Benches and the other to the Government Benches. To the former—this follows something that the noble Lord, Lord Shackleton, said—I say that, in my view, claims are wholly misplaced which have been made (not in this House but elsewhere) that the Civil Service is being politicised by appointing as Permanent Secretaries career officials who are political sympathisers. I do not believe that to be true of any of the Permanent Secretary appointments which have taken place from within Whitehall during the four years or more since I retired. There is never a single god-given candidate for a particular post. There is always a field of two or three possibles. In no case, in my view, has an appointment been made from candidates falling outside such a field. Politicisation is a more insidious and subtle process than that.
To the Government Benches I say that it has taken a century and a quarter to build a permanent, non-political Civil Service, trusted, on the whole, by government, opposition and public. Its efficiency can and should be kept under close constant scrutiny. It can be treated as a mildly or perhaps even wildly funny institution. In the late Lord Bridge's memorable phrase, it is in the same galère as mothers-in-law and Wigan pier; nowadays I suppose it is Mr. Jim Hacker and Sir Humphrey Appleby. But it can also be destroyed in a decade by ministerial hostility, misuse and indifference, and that I fear may be what is happening. I use one illustration only; there are many others. The Government, to their great credit, have at last proposed to the Civil Service a move towards the reintroduction of a pay system which was abandoned in 1981. Under their proposals they even edge nervously back to the notion of comparability. I can claim consistency here because, as some noble Lords may recall, I praised the Government for their courage in accepting the findings of the report of the Top Salaries Review Board last year which included a degree of one element of comparability.
The proposed new system entails the Civil Service putting its trust in the Government's good faith. This proposal was recommended to their members by a number of staff association leaders. It was something, however deficient, on which to build for the future. In the event, I understand that the proposal was decisively and heavily rejected by all but two of the associations. One of those which rejected it was the First Division Association, which, as the noble Lord, Lord Shackleton, has said, represents the senior members of the service.
This saddens me beyond measure. The only hypothesis to explain it is that this Government have even forfeited the trust of many of their senior staff. They do not, alas! believe in the Government's good faith. Let me say in parenthesis here that I am not talking about personal relations between Ministers and their official advisers, which I am sure in many cases—in most cases—are excellent. But I have to repeat that this Government's record as employers in relation to their employees, all but a handful of whom are gifted, devoted and loyal public servants, is seen by 1103 most of them as one of—and I choose my phrase carefully—callous opportunism. It is that relationship of trust which needs urgent repair.
My Lords, before the noble Lord sits down, I wonder whether I may ask him a question purely for my own clarification. He referred to the guidelines given to Ministers in their relationships with their civil servants and the guidelines of civil servants in relation to Ministers and Parliament. May I ask him—and I am not asking for the names, of course—whether the Civil Service drafts those guidelines, both of them or one of them?
§ Lord Bancroft
My Lords, I can answer in relation to the guidelines which are given to officials appearing before Select Committees. The original draft, of course, was done by civil servants in my day and it was then approved by Ministers. The same I have no doubt is true of the memorandum which Sir Robert Armstrong issued last year. I think that to ask me to be drawn into who drafts the guidelines for Ministers would be asking me to go too far—and 25 years too early.
§ 6.41 p.m.
§ Lord Rochester
My Lords, it is a privilege to follow the noble Lord, Lord Bancroft, who speaks on the subject of this debate with a knowledge, experience and authority which must be unrivalled in your Lordships' House. I hope that your Lordships will understand if among such a distinguished list of speakers I deal only with the relationship between the Government and the civil servants in the relatively narrow field of industrial relations in which I feel qualified to speak. That will involve reference in particular to the controversial matter which has been touched upon already of whether civil servants employed at GCHQ should enjoy the right to belong to a trade union.
On this occasion I have given notice of what I am going to say only in the most general terms (and I seem to have heard that phrase before) to the Minister who is to reply to the debate. That is because delicate issues are involved and I do not wish to tempt the Government into striking an inflexible attitude in their response. My purpose is rather to sound a warning note as to where my noble friends—for I think I may speak for them, too—and I now stand in this matter.
In my view the Government, in declining two years ago to engage with the unions involved at GCHQ in negotiations which might have resulted in a "no strike" agreement, missed a glorious oportunity to establish a precedent which might have been of inestimable value to us all. I say that because the case now seems to me to be as strong as ever for introducing as a quid pro quo in such an arrangement some form of independent arbitration as a last resort in disputes involving the pay and working conditions more particularly of those public servants who are employed in key occupations that are vital to the support of life or to the security of the state.
Instead, the Government offered to pay £1,000 to every member of GCHQ staff in compensation for their withdrawal of individual rights and threatened 1104 with dismissal those who declined to exercise either of the two options extended to them or to accept a suitable alternative posting. At the time, I said in this House that there was something about that arbitrarily fixed financial inducement which stuck in my gullet. Whatever it might be called by the Government, in my view the purchase for money of the individual liberty involved was unsavoury. I did not believe that a price could be set on such a loss and the Government's offer to enter into such individual contracts left a bad taste in my mouth.
I further expressed the fear that if the Government remained unwilling to reach some accommodation with the unions that safeguarded both the defence capability of this country and the freedom to belong to a trade union, the morale of civil servants would be damaged, the standing of responsible union leaders diminished and the security of the state thus placed more, not less, at risk. The Government might then come to regret their action but it would be too late for they would have achieved precisely what they set out to prevent. I have seen no reason to change the views that I expressed at that time.
But since then there have been a number of developments. Six months ago the head of the Home Civil Service wrote to the Council of Civil Service Unions saying that any member of GCHQ staff who had signed an undertaking accepting the changed conditions of service offered him at the beginning of 1984 and who had joined or rejoined a national Civil Service trade union after a specified date and remained in membership had either to resign from the union or face disciplinary action for breach of conditions of service.
That ultimatum was issued despite the fact that the European Commission of Human Rights had still—and, indeed, it still has—to consider the legality of the Government's union ban. It is fair to say that the people facing disciplinary action are as yet confined to those who rejoined the union after having received their £1,000. That money, was, however, given in compensation for loss, not of trade union memberships, but of employment protection rights. Moreover, I understand that a number of those who rejoined their union offered to repay the £1,000 but had no response from management.
All the Civil Service unions have committed themselves to demonstrate their strength of feeling by taking industrial action should any member of GCHQ staff be dismissed because he or she is a trade union member. More than that, leaders of unions in the crucial field of electricity supply, noted for their responsible attitude in such matters, have promised to ballot their members concerning possible action should any GCHQ member be sacked.
The Labour and Alliance Parties are, I believe, united in their opposition to the action taken by the Government in this matter, and in the interests of the test the Government themselves applied, namely, national security, I take this opportunity to urge the Government to stay their hand.
There is one other matter concerning trade unions which is relevant to the relationship between the Government and the Civil Service, on which I will touch only lightly, again because I do not wish to exacerbate a situation which is already somewhat 1105 highly charged. It concerns the desire of a number of Civil Service unions to hold ballots on the possible establishment of political funds under the provisions of the Employment Act 1984. I think I am right in saying that the members of all unions which already have such funds have voted in favour of retaining them. Some unions which have not previously had them, including a number of non-industrial civil service unions, have decided to hold a similar ballot.
Recently, the Government sought to discourage them on the grounds that in their case political funds were unnecessary because Civil Service unions are free, like others, to spend money from their general funds in support of their members' interests. Additionally, in the Government's view the establishment of political funds in Civil Service unions would not be in keeping with the need for the service to remain politically neutral.
I do not propose to rehearse in any detail the various counter-arguments which have been advanced by the unions. Suffice it to say that in their view it is no less appropriate that, for example, cleaners or messengers in non-industrial branches of the service should contribute to a political fund than that their counter-parts in the Ministry of Defence should do so, and that the establishment of a political fund is not the same thing as affiliation to a particular political party.
Of course there is much more than that which could be said on both sides of the argument. My purpose, however, in referring to these matters is not to come down heavily on one side or the other. One of the things that most disconcerted me—and here I come near, I think, to agreeing in a rather different context with something the noble Lord, Lord Bancroft, said—is the way in which in politics everything has to be presented in terms that are either black or white whereas, as we all know, they are very often grey. My hope is that in this delicate area the Government will not over-react, for I fear that if they do it could prove counter-productive.
In matters concerning pay and employment conditions generally, the difference between employer and employees in the Civil Service is already great enough. Morale, as was said by the noble Lord, Lord Shackleton, is low. The noble Lord, Lord Bancroft, went further and talked of trust having been forfeited. In my view it would be prudent for the Government to think long and hard before making any further moves on this particular point concerning political funds. In short, I hope the Government will find it possible to handle as coolly and as passively as they can both the matters I have taken the liberty of putting before your Lordships this evening.
§ 6.53 p.m.
§ The Earl of Longford
My Lords, the noble Lord has spoken with much expertness about a very important aspect of the question in this debate initiated so arrestingly by the noble Lord, Lord Hooson. I agree with so much that the noble Lord, Lord Shackleton, has said, and he speaks with an authority I do not possess because he has been Minister for the Civil Service Department. That was an appointment that was awarded to a Leader of the House of Lords after my time.
1106 I agree with so much that he said that I would only emphasise one thing in particular. He insisted in quite a controversial way—and I agree with him—that civil servants have a duty beyond that of simply carrying out the instructions of their masters. They have a duty to uphold high moral standards. I do not think that this is something one can ever put into black and white: it is either done or it is not done. The noble Lord, Lord Shackleton, put it very well and I was very glad that the noble Baroness, Lady Seear, if I may say so, challenged him on the point because it enabled us all to be clear on what he was saying. He said that his Permanent Secretary would not have allowed him to do a certain thing and I think he then explained exactly what he meant. It would have been impossible to do it in his relationship with the Permanent Secretary.
I am an admirer of former President Nixon; in fact, I wrote a small book about him. One of the things I have always said about Nixon is that Watergate could not have happened here. I still believe that, in spite of anything that has been said since. It could not have happened here because the top civil servants—Sir Robert Armstrong, or whoever was there—would simply have said, "Prime Minister, you cannot do that". I still believe that to be true of our system. Of course if it ceased to be true the whole thing would go to pot and one might as well go and live somewhere else. That was, I think, a terribly important point brought out by the noble Lord, Lord Shackleton.
The noble Lord, Lord Bancroft, speaks with enormous authority. I am glad that I am not the Minister who is to reply tonight, because the noble Lord could hardly have been more severe in his final remarks about the attitude of the Government to the Civil Service; and no words of mine could add to the severity of that criticism. Other speakers will have their own qualifications. I suppose mine are really more of a Rip Van Winkle, perhaps, than anybody else. It is over 60 years since I first began to study British political institutions, well over 50 years since I began to teach them as a don at Oxford, and over 40 years since, in a humble way, I tried to apply what I knew as a Lord in Waiting here in the Government. So I speak just as a kind of Nestor in this debate, in relation to relatively young men.
I personally agree with what I think was one of the conclusions of the noble Lord, Lord Bancroft: that our system is still, in a sense, as pure as we have claimed it to be. In that sense it seems to me it is the same system that I studied as an undergraduate over 60 years ago. I agree with the noble Lord that it would be fatal to the standards of our life if it ever became politicised, although there are always going to be dangers of that and you can never quite say where the line is to be drawn. We expect a lot of our civil servants. In fact, we expect such a peculiar mentality or psychology among them that I am amazed that such people have ever come into existence at all. We expect them to have this dispassionate quality, this readiness to serve whoever happens to be their master, along with this independence of moral judgment. We expect those qualities.
I remember, when I was helping the then Leader of the House to carry the nationalisation of iron and steel, being sent over to that Box in the corner over there because I had been asked to obtain a reply to 1107 points—no doubt tiresome ones—that were being raised by the Conservative Opposition. I saw in front of this high official two piles of notes and I asked, "Why have you got two piles?" He said, "These are the notes enabling me to equip you to reply to the Opposition". I said to him, "what are the others?" He replied, "Those are the notes I have got ready to help the Opposition to reply to you when they come into the government and they want to denationalise steel". That is actually true, and it is a very good example of the neutrality.
Somebody might say, "No one but a eunuch could have that point of view"; but in a curious way that is the quality we expect of civil servants, always remembering that at a certain point the civil servant says, "No, Minister; you cannot do that". We have a picture of the civil servant which remains what it has been and how all my life I have seen it. I think it remains the same today.
There are these many developments which have been mentioned. The noble Lord, Lord Bancroft, said with so much conviction that no attempt has been made to choose Permanent Secretaries who were suited to the special point of view of the Government that I have to go and think again. All the evidence supplied in the press is against that conviction. Again and again, we have been given names of people at great length. It has all been spelt out. I do not know whether I hope he is right or I hope he is wrong. But, quite honestly, I do not quite believe him. That is the long and the short of it. I am sure that he believes it himself, but it is not generally believed that the Thatcherite approach is considered quite irrelevant when appointing top civil servants. As a matter of fact, the noble Lord, Lord Bancroft, put it in such a careful way that I need to read it in Hansard. He said that no one is chosen outside the small circle of people qualified, which is not quite the same as saying that the best person on other grounds is always chosen. But, as I said, I must read that carefully in Hansard.
We have the Select Committees. It has been the role of the civil servants to appear before Select Committees. I welcome these Select Committees. They enable Parliament—the House of Commons, at any rate—to play a creative role and they are good for civil servants in keeping them on their toes. One of my sons is in the Foreign Office. He has appeared several times before the Defence Committee and thoroughly enjoyed it. So a good time can be had by all. But in theory it is a very difficult line to draw and we realise that at some point the civil servant has to say, "I am afraid that is policy and I cannot deal with it". So it raises problems and there may be, in times to come, clearer guidelines laid down.
In passing, I agree with the noble Lord, Lord Shackleton, about the separation of the head of the Civil Service from the Secretary to the Cabinet. I know that in theory the Secretary to the Cabinet is the servant of the whole Cabinet. In my time the noble Lord, Lord Trend, went out of his way to be kind to all Cabinet Ministers, but he was basically the Prime Minister's closest adviser. Nothing can stop that and to have him in charge of the Civil Service is bound to put too much power in the hands of any Prime Minister, 1108 whether this one or any other one. That is the conclusion which the noble Lord, Lord Shackleton, reached, and I agree with him.
Another point of my own that I want to make—I do not know whether it will ever come about—is that more responsibilities ought to be placed on junior Ministers. If we could only hand over some of the responsibilities to junior Ministers, the extraordinary dichotomy between them and the top Minister, with thousands of officials underneath, would not be so severe and officials would be in a better position to interpret policy. I say that in passing.
There is one other development I must mention: that is, the coming of these information officers. Information officers sound all right. It sounds as if they are a sort of extension of the Daily Telegraph information service, just giving facts to help people form their opinions. But in practice they are propaganda officers, just as the Ministry of Information was a propaganda Ministry during the war. This is a development that would certainly have horrified my dear old chief Lord Attlee. It would have nearly killed him to have all these information officers about the place putting up the Government's case.
I have nothing whatever against Mr. Bernard Ingham, who has become very famous these days. We are told, quite authoritatively, that after the Prime Minister he is probably the most powerful man in the country—if not, he is very close to it. So that tremendous power is passing into the hands of these information officers. How can we see that in relation to the idea that civil servants are neutral? How can these passionately committed propaganda officers be regarded as neutral in the old sense? I do not have time to provide the answer. I will just leave it there.
§ Lord Hooson
My Lords, before the noble Earl sits down, he interrupted me to point to the example of the noble Lord, Lord Carrington. I was on my feet at the time but I have now given it mature reflection. I think that was right. It was a genuine example of the acceptance of ministerial responsibility in its fullest sense.
§ The Earl of Longford
My Lords, I am immensely grateful. In all my 40 years in this House, the noble Lord is the first one who has ever said that I was right when I interrupted him.
§ 7.5 p.m.
§ Lord Diamond
My Lords, this debate has been conducted with great objectivity and good humour. It is a very important debate and we all owe a debt of gratitude to my noble friend for having introduced it. He introduced it by saying that he was going to look at these matters mainly from the point of view of a parliamentarian. It is fitting therefore that I, as the other half of the Alliance, should look at it mainly from the point of view of an ex-Minister. Indeed, that is the way in which I do look upon it in the context, and exclusively in the context, of how to achieve good government—a very difficult task for which the nation, Parliament and, in particular, Ministers need every possible assistance.
The first assistance which they need is the total reliability and perfection, so far as it can be achieved, 1109 of their closest advisers in their ministerial office. I was very glad that in this connection my noble friend quoted with approval the view of the noble Lord, Lord Houghton, and of the noble Viscount the Leader of the House, who said that civil servants owe their primary responsibility to their Minister. I cannot see any other method by which a Minister is better equipped in his difficult task of good government than by having the best possible advisers, objectively chosen for their professional skill, offering him their total loyalty and he, in return, doing everything possible to merit, achieve and keep warm that loyalty and mutual trust.
I think therefore that the memorandum of Sir Robert Armstrong, which has been referred to, is entirely to be respected and read with the greatest care in the various ways in which it sets out how a civil servant should behave. It starts on the principle, which I can accept completely, that for all practical purposes—I am not sufficiently equipped to discuss the theory of the matter, but I am to discuss the practical purposes—civil servants are answerable to their Ministers, because they are the servants of the Crown in Parliament and the Crown acts through Ministers.
I know of no organisation, whether business or Parliament—they are very different things, but they both need to work efficiently—which can work efficiently if the lines of authority and the lines of communication are confused, as they will be confused unless there is a clear understanding of who is responsible to whom. The civil servant is responsible to his Minister and the Minister is responsible to Parliament. The Minister is reponsible to Parliament for policy. The Minister is responsible to Parliament for the administration of his department as well. Of course, it is his Permanent Secretary who carries out that responsibility, but the Minister is in charge and has to answer questions, and it follows that the civil servant does not have to answer questions. It follows from that that a civil servant should not be put in the position of having to answer questions, except at the request of his Minister, and to the extent that his Minister wishes information to be given or policy to be explained.
I do not draw the difference that has been drawn hitherto between policy and facts. Policy can be explained by the civil servant; it cannot be justified, as has been said, by the civil servant. It is appropriate that a Minister should assist Parliament, to which he is responsible, by seeing that his civil servants are there to provide all the facts, to explain policy and to give it whether it is given to Parliament in the form of sitting as a full House or sitting as a committee, in particular as a Select Committee. That I feel is the only way in which a Minister—and therefore a Government—is best equipped to carry out his most difficult task.
On that assumption, is everything well at the present time? It clearly is not, and I therefore have to offer a suggestion or two as to what remains to be done to improve the situation and, if I may say so, to restore the situation. I am not relying on hearsay; I am relying on my own knowledge. I am relying in particular on an occasion—I shall not date it and therefore it will not be possible to say which government were in power at the time—when having addressed a meeting of senior to very senior civil servants at the Civil Service College it 1110 was then question time and I was cross-questioned about a great variety of the things I was saying. I was putting forward what has been well called a classical view of the relationship between the civil servant and his Minister and between the civil servant and Parliament.
They asked me how on earth I could propose such a simple view having regard to the situations in which from time to time they themselves had been put. They explained what they were and my hair stood on end at the thought that they should have been put in such very difficult positions by Ministers departing totally from the accepted view of the relationship between a Minister and Parliament. Therefore, I am bound to say that all is not well and much needs to be done. Perhaps I may divide it into two parts and say, first, what I think ought to be done on the part of the civil servant; and secondly, what ought to be done on the part of the Government.
With regard to the civil servant, I have very little to add to what I have already indicated. Whatever his anxieties are, whatever his difficulties are, there exists machinery within the Civil Service to enable his difficulties to be ironed out and his anxieties to be dealt with, to be explained and, if necessary, brought to the highest possible quarters. Having that machinery, and because he is able to do all that, whatever his anxieties are—on whatever basis they are—it is not open to a civil servant to seek release from his difficulties by explaining them, by uncovering his conscience to the public at large through a leak to a particular newspaper. That is simply not open to him; nor is there need for it. Had there not been this machinery it would be totally different. If in the final analysis after all these processes have been gone through, a civil servant finds himself completely unable to carry out his responsibilities, it is obvious that he has chosen the wrong profession and must choose another. That is all I have to say about the Civil Service.
With regard to Ministers, there is far more to do in re-creating the morale which is undoubtedly at a lower ebb than it should be, and indeed in certain areas at a very low ebb indeed. I am concerned therefore with what re-creates morale. An obvious answer to that is recognition—recognition both by the public and more particularly by Parliament and by Ministers—of the work done by the Civil Service and enthusiastic defence of the civil servant when some of the things that the Government have done are blamed on to the civil servant. I say this to the noble Lord who is going to be good enough to reply to the debate and who has sat through and listened to every word.
I regret that during the 15 years I have been in your Lordships' House there have been several occasions—far too many—when civil servants, by category and not by name, have been referred to and criticised and there has been no defence whatsoever when it was the duty of Ministers sitting on that Front Bench immediately to get up and explain that it is not our practice to attack people who cannot defend themselves; that it is quite improper for us to do so; and that the explanation is whatever it is. That has not been forthcoming on a sufficient number of occasions for me to feel embarrassed and, I am sure, for civil servants to feel that they are not being properly protected. If what I have said is right the civil servant 1111 must be protected by anonymity; and if what has been done—whether or not it is on his advice nobody will know—by the Minister is to be laid at the door of a civil servant, in my view the Minister is there immediately to defend him.
A second area to restore morale is responsibility. A civil servant has an important profession. Every professional man enjoys exercising his responsibility and helping the public to the greatest extent he can. That is true, too, with civil servants. How can that happen? How can he exercise his responsibility unless a Minister listens carefully to the views put to him—listens, not accepts; listens carefully to the reasons given by the civil servant as to the possible practical difficulties of giving effect to the policy?
It is a familiar phrase that Ministers are confronted by civil servants who will always tell them the reason why something cannot be done. Those who have experienced government know that the one thing you must avoid is legislating for and giving effect to policies which do not work. You are far better off to have the annoyance and irritation of having all these pitfalls pointed out to you in advance than to take the alternative line and say, "I know better. I am going ahead with this", and then seeing your policy collapse in practice. So it is through both recognition and responsibility that morale will be raised.
As I am on the point of responsibility, perhaps I may also say that as it has become the practice for Ministers to bring into their private offices specialist advisers from outside the Civil Service it is very easy for a Minister to forget that his chief adviser is his permanent secretary and that his permanent secretary must have the fullest opportunity of expressing his advice and his views no matter what the perhaps more sympathetic views of the political adviser may be. The permanent secretary will of course feel that he has been denied the possibility of doing his job fully if he is not so consulted.
The third and most important way of raising morale is of course through pay. As that subject has been covered—in particular, the question of a no-strike agreement has been referred to so clearly by my noble friend—I have no need to take up more of your Lordships' time on that matter.
So far as concerns achieving the greatest possible efficiencies, I am glad that many speakers have referred to the need for purely objective criteria in choosing civil servants and in appointing them to important tasks. I would only disagree with the noble Lord, Lord Shackleton, to this extent: he thought there might be circumstances in which subjectivity was justifiable. In my view, there are no such circumstances. The agreement that a sympathetic civil servant would carry out his tasks for and with a Minister better must rest on the assumption that he is sympathetic to the Minister politically and will therefore do better for him—and so do worse for the next Minister he has to serve, if he comes from an opposite political party holding a different political point of view. It is essential that there should be no sense of political commitment at all disclosed to a Minister, and that the Minister should be able to know that he has the fullest confidence of the civil servant in carrying out his duties.
1112 My Lords, something has gone wrong with the timing machinery in your Lordships' House because it is already indicating 17 minutes and I have spoken for only five minutes! However, I shall bring my remarks to an end by saying that I am sure this debate has been well chosen. I am sure that I have made my position clear, as complementary to what has been said by the noble Lord, Lord Hooson. I am sure also that the Government have a lot of hard thinking to do if they want to return the Civil Service to the kind of service that I knew and which was the most helpful instrument possible in achieving good government.
§ 7.23 p.m.
§ Lord Cledwyn of Penrhos
My Lords, the noble Lord, Lord Hooson, has raised a subject that is both important and timely, and one that, to us as parliamentarians and politicians, is intensely interesting as well. The noble Lord's opening speech was a thoughtful introduction to our debate. I probably agree with most of what he said, excepting only the slight party political flavour he gave to his remarks at certain points.
All the speeches we have heard have been informed and authoritative. I listened to them with very great respect. We have lived through a period when the workload of the Civil Service has increased enormously and the numbers have grown in proportion. There were only 500 members in the administrative class in 1914. We also live at a time when certain well-established principles are being called in question.
When I entered the other place, those principles were regarded as immutable and, with others of my generation, I accepted them. They have been discussed by my noble friend Lord Shackleton in one of the authoritative speeches we have heard. Chief among those principles is that of ministerial responsibility. Another is the principle of neutrality.
The noble Lord, Lord Hooson, mentioned the case of Sir Thomas Dugdale. I recall still with what respect and sympathy I heard of his resignation as Minister of Agriculture over the Crichel Down affair. Sir Thomas Dugdale accepted responsibility for maladministration by some civil servants of which he had been unaware. In fact, he corrected the abuse but he resigned. I remember also asking myself at the time whether his resignation, although it did him very great credit, was really necessary.
As we know, the range of ministerial work has increased enormously, and the decision-making process has developed in complexity. There are thousands of administrative decisions that affect the individual citizen and which have to be taken by civil servants without a Minister's knowledge. Although the appointment of additional ministers of state and of parliamentary under-secretaries—especially in the time of my noble friend Lord Wilson of Rievaulx—increased ministerial control to some extent, it only touched the hem of the problem. Decisions—so many of them—still have to be taken by officials.
I suppose that the best method of control would be to define broad lines of policy within which officials 1113 must carry out their work. However, I do not believe that Sir Thomas Dugdale would have been required to resign his office today.
Many authorities have analysed and defined the principles under which our civil servants work. In Dr. William Plowden's important article in the winter issue of Public Administration, he writes:The boast of the British Civil Service is that its total neutrality enables it to serve ministers of any conceivable government with equal loyalty and effectiveness".We have all said something similar at one time or another, and we have believed it. We believe that we have the best Civil Service in the world.
My own experience as a Minister confirmed me in that belief. Not all civil servants are perfect, any more than all politicians are perfect. There are of course some civil servants who want to have things all their own way, on the pattern of "Yes, Minister". However, it is up to the Minister concerned to ensure that, at the end of the day, he holds the final authority in his department. In my experience, civil servants understand and respect that situation and have a healthy appreciation of the party system and of Minister's political sensitivities. A Minister, for his part, should also have the instinct to detect any deviation from neutrality. If he cannot do that, then he should not be a Minister.
I agreed with my noble friend Lord Longford when he said—and I believe the same point was made by my noble friend Lord Shackleton—that it is the clear duty of a civil servant to advise a Minister if he believes that the Minister is about to say or do something stupid, impracticable, or against the broad public interest. It is in that respect that the importance of the Private Secretary and the Private Office within the departmental machinery cannot be over-estimated. That link between the Minister and his staff, and between other private offices in other departments, is of central importance.
With reference to the Ponting affair, I confess that I should have been appalled if anything that I had said at the end of a long, tiring day, when I always thought that I could let my hair down, would be leaked to the press the following day. A Minister must be able to rely upon the absolute loyalty and discretion of his civil servants. They in turn—as your Lordships have been reminded by a number of speakers—have procedures that they can follow if they disagree with their Minister. Ultimately, as the noble Lord, Lord Bancroft, said, civil servants can resign. I have never understood why Ministers are always the people that have to resign. I was fortunate to have Private Secretaries who served me loyally; who became, and who remain, my friends; and who forgave my idiosyncrasies.
In the course of his speech the noble Lord, Lord Hooson, said that Ministers tend to ask, "Is he one of us?" No doubt that passes through a Minister's mind occasionally, but I must say to the House that this never occured to me when I was considering major issues or problems. When I was chairman of the Rhodesia Committee in the middle 1960s when the Unilateral Declaration of Independence was made, and had to deal with the problems of Rhodesia; when I had to deal with the appalling and tragic problems of the Aberfan disaster; when as Minister of Agriculture 1114 I had to deal with the outbreak of foot and mouth disease or the rabies epidemic—I did not turn round and ask if civil servants were Conservative, Liberal, Labour or Flat-Earthers. I was concerned to see that they were able to give the best advice so that I could make the best judgment. We must keep a sense of proportion as to what we expect our civil servants to do and to be.
One or two noble Lords have made a comparison with the civil services in other countries. This is always interesting especially when one considers the problems of politicisation—and, if we can learn anything useful from them, all well and good. We know that the civil servants in other Western countries are not expected to observe the same traditions of political neutrality as are our own, but we should bear in mind that they do not enjoy the same security of tenure either. For example, we know about the large turnover of civil servants which takes place in the United States when a new administration takes office. We know that in France and West Germany top civil servants can be dismissed by Ministers, though in practice many of them keep their posts. The key point is that they are likely to lose their jobs if the Minister begins to suspect their politics.
But the systems of other countries may not be appropriate for us. Nowadays for some curious reason it is not regarded by some people as proper to praise our own traditions. However, it must be said plainly that, while change, modernisation and new blood are obviously desirable, change must make sense. It must not be change just for the sake of change. We must be careful not to damage the system which is well tried and which has resulted in a first-class Civil Service.
This has been a century of cataclysmic change: democratic governments have fallen and countries have been subjected to tyranny and the chaos of civil disorder. In this country we are fortunate to have avoided these grim excesses. Our parliamentary democracy, which is composed of Government, Parliament and the Civil Service, with its independent judiciary, has survived two great wars and has produced periods of great reform, notably in 1905 and 1945, without sacrificing stability. In my view we must avoid excitable or ideological change which would upset the balance. This is our clear duty to the people of this country.
It is true that we could have more open government without damage to the national interest. Perhaps there is a tendency to classify too much and to keep the lid down too tightly on matters which are not of the first importance. Nevertheless, we have seen some substantial modifications and on the whole I think they have been beneficial. There has been recruitment from a wider field and from more universities; a system of political advisers; the Policy Unit was set up following the recommendation of the Fulton Committee; another recommendation of Fulton led to the creation in 1968 of the Civil Service Department by my noble friend Lord Wilson of Rievaulx. In 1967, we had the appointment of the Parliamentary Commissioner for Administration, the Ombudsman, which was a significant step.
Last but not least there is the extension of the number of Select Committees and their work, which has brought civil servants more frequently face to face 1115 with Members of another place. The noble Lord, Lord Bancroft, referred to the Estimates Committee and to the Public Accounts Committee. I served on those two committees for several years and we had close contact with senior officials there. As the noble Lord would agree, the system is now far more significant and extensive, as was very clearly demonstrated by the recent sittings of the all-party Select Committee on Defence about the Westland affair, which was referred to by my noble friend Lord Shackleton and several other noble Lords.
It is sad to have to say, but nevertheless it is true, that there has been a decline in standards in recent years and this has come out time and again in this debate. The conduct of political heads of department and the way in which civil servants were involved was one of the least attractive aspects of that unhappy Westland affair. I felt particularly sorry for Miss Colette Bowe, who was doing no more and no less than she was told by her superiors.
There now appear to be two schools of thought. One is represented by Sir Robert Armstrong in his note on Civil Service relations with Ministers following the Ponting case and of course in his evidence to the Select Committee recently. The other school has an able advocate in Dr. William Plowden, to whom I referred earlier. Sir Robert has stressed that the civil servant has no constitutional personality separate from the Minister and can be expected to be protected from publicity or responsibility. Sir Robert defends the old doctrine in its entirety. Dr. Plowden believes that the Civil Service is being politicised and he would like to see the traditional, rigid career patterns broken down.
I think it would be of interest to the House if I quote one paragraph of his article very briefly. Dr. Plowden writes:Civil servants would become, internally and externally, more accountable for their own decisions, for their success and failures. Some would become nationally known figures. Ministers (and Parliament) would have to accept this. Ministers reciprocally would be entitled to take a far closer interest in Civil Service postings and selectively to insist that certain posts be filled by people of their own choice, from inside or outside the service.That is the view of Dr. William Plowden.
I see the gulf between these two viewpoints as very wide indeed. But let me say as clearly as possible that if major changes are to be made then they must be made by Parliament after due deliberation. We must listen with respect both to civil servants and to distinguished commentators, but the final decision rests with Government and ultimately with Parliament. The experience of the last few years shows that some further changes are needed. The Government, in their treatment of GCHQ, mentioned by my noble friend and the noble Lord, Lord Rochester, and in the way that they have involved civil servants and information officers in particular in politically controversial issues, have contributed to this uncertainty and the lowering of morale, which I believe to be very unfortunate indeed. I hope that the serious words of the noble Lord, Lord Bancroft, will be heeded by the Government.
Ideally, the problem should be resolved by all the political parties after a full parliamentary inquiry involving both Houses and after extensive debates. My 1116 noble friend Lord Diamond also made some valuable suggestions in his speech and I hope that account will be taken of these by the noble Lord who is to reply and that he will convey them to his right honourable friends.
The Civil Service of this country, with its superb reputation, must not become a party political football. In my judgment that would not serve the best interests of the people of this country. In Britain we have so far managed to find sensible and workable solutions to our constitutional problems, and there is no reason why we should not do so in the continuing development of our primary national institutions.
§ 7.39 p.m.
§ Lord Belstead
My Lords, first I should like to thank the noble Lord, Lord Hooson, for putting down the Motion that we have been debating. The relationship between the Government and Parliament and the Civil Service is rightly seen as being of considerable importance, not just to the Government or to Parliament but, I suggest, also to the welfare of our country. The importance of the subject has attracted four former Cabinet Ministers and a former head of the Home Civil Service to speak.
Early in the debate the noble Lord, Lord Hooson, spoke of the constitutional position—"the pact", as he referred to it—between the Civil Service and the Crown in Parliament. That brought this afternoon's debate immediately to Sir Robert Armstrong's note on the duties and responsibilities of civil servants in relation to Ministers. The note was issued in February of last year. It did not break new ground. It was a restatement of the principles on which the relations between Ministers and the Civil Service have traditionally been, and continue to be, based. In the Government's view those principles remain as valid as ever.
As Sir Robert has made clear, the note is not designed as an exhaustive document. It is impossible to prescribe for all circumstances in advance. It is designed as a yardstick against which civil servants should judge how to behave in particular situations. I must say that I was encouraged to hear the noble Lord, Lord Bancroft, say that he believed in the classical position of the Civil Service in the constitutional pact. That is a point of view which was repeated in other speeches in the debate.
The basic doctrine in the note is that civil servants are servants of the Crown. For all practical purposes the Crown in that context means, and is represented by, the government of the day, and the Civil Service has no constitutional responsibility separate from the duly elected government of the day. The duty of the civil servant is to his Minister. He must advise Ministers without fear or favour in the consideration of policies. Once a decision on policy has been taken, the duty of the civil servant is to carry that policy out loyally. Under our constitution it is the Minister who is responsible to Parliament for the conduct of the department's affairs and the management of its business. That, in essence, is the central theme of Sir Robert Armstrong's note. It is a theme which was most strongly endorsed by the noble Lords, Lord Diamond and Lord Cledwyn, towards the end of the debate.
1117 It is unlikely, but there may be occasions when a genuine difference of view arises about the legality or propriety of what a Minister asks his officials to do. That is a matter to which some noble Lords have devoted part of their speech. Alternatively, a civil servant may face a crisis of conscience about policies or actions that he has been asked to carry out. Internal procedures are laid down for such occasions, as your Lordships know very well. Those procedures involve consultation with senior officers, including, when appropriate, the permanent secretary of the department and the head of the Home Civil Service. The noble Lord, Lord Shackleton, was absolutely right to remind us that the internal procedures were not fully activated in the Westland affair because the timing was quite exceptional and, in effect, made it impossible for the consultations to take place which would have been very desirable, as it turned out.
As your Lordships will be aware, a sub-committee of the Treasury and Civil Service Select Committee is currently taking evidence in another place on Sir Robert's note and intends, I understand, to publish a report shortly. The Government will be giving the report and its recommendations very careful attention. But without prejudice to the report, I should just like to make a few observations on points made during the debate and also to give an assurance to the House that the Government will certainly take your Lordships' views very seriously into account in considering the sub-committee's report. Among the last words of the noble Lord, Lord Cledwyn, was a request that I draw my right honourable friend's attention to this debate, and that I intend to do.
The noble Lord, Lord Hooson, referred to the case for a code of ethics for civil servants. I understand that a draft code is still under consideration by the Civil Service unions. It is difficult to comment substantially without seeing specific proposals, but, as Sir Robert said in his evidence of 25th November to the Treasury and Civil Service Select Committee, the problem lies in drawing up a code to cover all eventualties. That is the reason why his note sets out the general principles, with provision for senior officers to be consulted on their application in particular circumstances.
Also during the debate your Lordships have questioned whether the existing guidance for civil servants is sufficient when an issue of conscience arises. Crises of conscience relating to work are always difficult for those involved, whatever their profession. As I have already said, Sir Robert's guidance is deliberately set out in terms of general principles, and he has indicated that it should not necessarily be regarded as the final word on this subject.
However, some noble Lords, and notably the noble Lord, Lord Hooson, in his opening speech, have referred to the suggestion that there may be a need for an external, independent appeals procedure for civil servants, or that civil servants may owe a different loyalty other than that to Ministers. It is a matter on which some noble Lords who have long experience of ministerial office have expressed very strong views indeed, particularly towards the end of the debate. That again is an area in which I am sure the Treasury and Civil Service Select Committee will have views, and I must not pre-empt them.
1118 But I think that it is worth considering what would actually happen if civil servants had the right of appeal to an external authority, whatever format that authority might take. Even if the appeals procedure was used only rarely it would in effect mean that civil servants, who, after all, are neither elected nor accountable to Parliament, would be in a position, as it were, to bypass the Ministers to whom they work. Thus appeals to an external authority would destroy the basis of trust and loyalty which is currently the norm between Ministers and civil servants.
The noble Lord, Lord Hooson, also spoke of the increasing polarisation of policies among political parties, although I think I am right in saying that he did not draw the conclusion that the time has come for senior Civil Service posts to be political appointments, or, alternatively, that Ministers should be served by cabinets in the continental style, as some people suggest these days. I think that it is fair to say that the Government are by no means persuaded by the polarisation argument. Let me follow some of your Lordships and venture an opinion which is in line with the views of the Government but which is also my own. I believe most deeply that almost anyone who has worked with the Civil Service must have a great respect for its integrity and loyalty and its ability to service successive administrations and to give objective advice. I am convinced that a non-political, career Civil Service is in the best interests of our country. That is not to say that difficulties do not arise or that there is not scope for change. For example, some Ministers are making more use of political advisers. But any difficulties surely should be dealt with in the context of a system of government service of which we have good reason to be proud.
In that general context the noble Lord, Lord Hooson, suggested that there has been a recent tendency to want senior civil servants to be "one of us". I was interested that the noble Lord, Lord Cledwyn, from the Minister's point of view, said, as I understood him, that the test is whether the advice being given by the Civil Service is as good as the Minister could possibly expect and is given in as good a working relationship as possible, bearing in mind the alarms and excursions to which he made reference.
The noble Lord, Lord Shackleton, speaking with the authority that he has as a former Minister for the Civil Service, testified to his experience of the impartiality of civil servants whatever their own private political views may be. And the noble Lord, Lord Bancroft, as a former head of the Civil Service, spoke of the considerable competition that there is for senior posts in the Civil Service. This makes it quite inconceivable that, in some way, one particular individual can be placed in a particular position. At any rate, if that ever could happen, it would be in the teeth of fierce competition from very highly qualified people.
I should also like to draw your Lordships' attention to the evidence given by Mr. Callaghan to the Treasury and Civil Service Select Committee in another place when the right honourable gentleman made clear that, in his view, this Government's policy for appointing senior civil servants was no different from that in his own period of office.
The noble Lord, Lord Hooson, then devoted part of his speech to ministerial responsibility. Until the noble 1119 Lord came back and intervened during one of the speeches, I confess that I did not share his views about ministerial resignations. If I may say so, I now share the view that I understood him to express. I also share the concern expressed by the noble Lord, Lord Bancroft, over the naming of individual civil servants during recent events. The point has been made that if the Government are blaming civil servants for what has happened, or expecting them to take the flak as the noble Lord, Lord Hooson, put it, then they should give those civil servants the power to defend themselves. If not, they should exonerate them. I wanted to, and your Lordships have allowed me to, steer clear of the Westland affair during the last few minutes. I would, however, like on this particular issue, because of its enormous importance for the relationship between Ministers and civil servants, to remind your Lordships that my right honourable friend the member for Richmond said in another place on 27th January:I therefore accept full responsibility for the fact and the form of that disclosure".—[Official Report, Commons, 27/1/86; col. 671.]There is, as it were, a second half to this debate. The noble Lord, Lord Hooson, then returned to the subject of the Official Secrets Act. Once again, the noble Lord has argued for the repeal of Section 2—a subject that was debated fully in your Lordships' House on 20th March last year. I would just say that the noble Lord is not alone in wishing to replace Section 2. In previous debates on this subject, the Government have recognised that Section 2 is indeed not ideal. Nor has this issue been set aside in the past. Your Lordships may remember that in 1979 the Government introduced a Protection of Official Information Bill into your Lordships' House based broadly on the recommendations of the Franks Report of 1971 and largely consistent with the Labour Government's White Paper of 1978. Although the Bill was given a Second Reading, it was clear that in a number of areas there was no agreement, and the Government, reluctantly concluding that there was no prospect of progress, withdrew the Bill. The questions of what information should be protected and who should decide what information deserved protection were the two issues on which the Bill foundered. But the noble Lord goes further today, as he has before, in suggesting that Section 2 should be replaced by a Freedom of Information Bill. With respect, I have to say that the Government do not agree with the noble Lord that this is the answer. Two main arguments have been habitually put forward in favour of greater access to government information. First, it is suggested that secrecy is too widespread within government and that this, in turn, encourages leaks which are generally deplored, and secondly that only a formal right of access to government information will properly protect the citizen against the actions of government.
Soon after taking office in 1979, my right honourable friend the Prime Minister made absolutely clear that the Government's policy was to make as much information available as possible consistent with the confidentiality essential to the effective workings of government. Indeed, your Lordships only have to look at the reports of the proceedings of your Lordships' House, of its committees, and of another place, to see that there is a vast quantity of detailed and 1120 significant information available about government activities and policies, certainly as much as most people would be able to find in many other Western democracies.
A Freedom of Information Bill, I suggest, would run into very much the same problems as the repeal of Section 2 of the Official Secrets Act. Even those in favour of such a Bill recognise that certain categories of information would have to be protected. After all, the Freedom of Information Bill introduced by the right honourable gentleman the Leader of the Liberal Party in 1984 would, had it been successful, have exempted various categories of information from disclosure. Those categories would have included information seriously impairing defence, security or foreign relations other than relations with the European Community, information assisting in the commission of crime or impeding law enforcement, information normally protected by lawyer-client privilege, information giving an unfair advantage to competitors of the party concerned, and information constituting an unwarranted invasion of an individual's privacy. I have been rather tediously going through those because it is a formidable list of information which that Bill considered would still have to be protected. There was one other as well, the desirability of which the noble Lord, Lord Shackleton, reminded us in his speech—the need to protect information that might otherwise reveal a civil servants' policy advice to Ministers.
Moreover, a general right of access to information would make a very fundamental change, I suggest, in the nature of the relationship between Ministers, Parliament and the public. That change would be as to who should take decisions on what information should and should not be released outside Parliament. Two proposals are generally mooted. Either there should be an appeal to the courts or there should be some sort of non-elected information commissioner, which was mentioned today. But in either case the judgment would rest with those bodies thus undermining ministerial accountability to Parliament.
The noble Lord, Lord Hooson, questioned, I think, the reality of that accountability—
§ Lord Shackleton
My Lords, if I may interrupt. Before the noble Lord leaves the subject of freedom of information, this has, as he said, been considered by many governments. The reason, when I was responsible for an examination, was that all the evidence seemed to me to be that we would have a more restrictive situation than exists under the present Act.
§ Lord Belstead
My Lords, that is an argument with which I am familiar. I am grateful to the noble Lord for reminding me and the House of that point. I should like to stress, in reply to the doubt which the noble Lord, Lord Hooson, I think, expressed about the reality of the accountability of Ministers to Parliament, the actual weight of information that has to be made available now. In 1979 the Conservative Government helped to set up the departmental Select Committee system of another place. The terms of reference, as your Lordships know very well, are very wide. It is generally agreed, I believe, that those 1121 committees are now examining an increased range of government activities in greater detail and drawing out a wider range of government information than ever before.
Thinking of the Ministry in which I happen to work, I find that we have been concerned in the past two-and-a-half years with inquiries with as wide subject matter as Spanish and Portuguese accession to the Community, Aujeszky's disease in pigs, the implementation of dairy quotas throughout the farming community in our country, lower input farming, the disposal and storage of cereal surpluses and the enormously interesting and important subject of the proper operation and effectiveness of the Wildlife and Countryside Act 1981.
Once again that is a very formidable amount of information through that particular channel of communication—the Select Committee channel—to be providing to Parliament from the Ministry in which I work and from other departments. In addition to that the Government have promised that time will be found for debate should there be widespread disagreement between a Minister and a Select Committee on what should be revealed. The wide-ranging powers of these committees, together with this undertaking, mean that Ministers are, I believe, accountable to Parliament.
May I end by answering two questions. The noble Lord, Lord Rochester, in his speech mentioned inter alia the question of the political funds of Civil Service unions. The Government believe that these are needed only if unions are proposing to participate in party political activities or to campaign for or against political parties or candidates. For the Civil Service unions to establish such funds and for such a purpose would, we believe, be contrary to the long-standing tradition of neutrality in the Civil Service which has to work for Governments of any political persuasion.
The noble Lord counselled coolness in dealing with this matter. There is no question of the Government's trying to interfere in internal union affairs in this matter. The purpose of the statement of my honourable friend the Minister of State at the Treasury—a statement which was, incidentally, requested by the Opposition in another place—was to make known the Government's view that political funds are unnecessary for Civil Service unions conducting campaigns on the terms and conditions of employment of their members.
The other question I must answer is that of the noble Lord, Lord Hooson. He raised the question: why is Questions of Procedure for Ministers not in the public domain? This is a note of guidance from the Prime Minister of the day to all Ministers covering how Ministers should conduct themselves on a variety of matters; for example, in relation to business interests, speeches and other things. It is not how Ministers ought to behave in relation to the Civil Service. With regard to publication, the Questions of Procedure for Ministers is a Cabinet document and, as such, fall within a category of document which it has been the practice of successive Governments not to make public.
My Lords, I hope that I have set out the Governmment's position clearly on the various issues 1122 which have been raised during this wide-ranging debate. I repeat, we shall most certainly reflect with very great care on what your Lordships have said. If there are ways to improve our system we shall certainly consider them.
§ 8.4 p.m.
§ Lord Hooson
My Lords, I have found this debate fascinating. I am most grateful to all the noble Lords who have taken part. I thank the noble Lord, Lord Belstead, very much for his very full reply and for the courtesy of that reply. As the noble Lord pointed out, the debate attracted the contributions of four very distinguished ex-Cabinet Ministers and a previous head of the Civil Service. I put this Motion down because I thought the time was ripe for such a debate in the cooler atmosphere of this House in the light of events over the last couple of years. I regard this debate as a precursor to the wider debate which the noble Lord, Lord Cledwyn, envisaged in a much wider-ranging sphere.
Perhaps I may make one or two comments. They are simply these. It seems to be generally agreed that the constitutional pact—the Whitehall pact, as I have called it—is at least under strain. I would have said that it is more than under strain. The scale of activities of the Civil Service, the introduction of such people (as the noble Earl, Lord Longford, pointed out) as information officers—really propaganda officers—changes the nature of the Civil Service to a certain extent and I suspect that we are going through the inevitable process of modification.
I believe very strongly that a freedom of information Act is necessary simply because I think most of the areas of dispute concern factual information which is held back. In response to the query raised by the noble Lord, Lord Shackleton, may I say this. In my view, a freedom of information Act would protect from disclosure the advice given by civil servants; certainly that would not be a matter which would be disclosed. But there is no reason why the facts upon which the advice was based should not be disclosed publicly.
I am very grateful to everybody who has participated in and contributed to this debate. In the light of the advice, given in his notable speech, that the noble Lord, Lord Bancroft, gave to the Government—and I think the onus is upon the Government to restore trust between themselves and the civil servants—it is a pity that not a single Conservative Back-Bencher took part in this very important debate. Of the distinguished ex-Cabinet Ministers that adorn their Benches, not one took part. I must exempt the noble Viscount the Leader of the House, who apologised to me today because he could not be present and explained the reasons to me. But I think that one upshot of this debate is to disclose quite clearly that in all sections of this House who contributed to the debate it is believed that there is a heavy onus on the Government to restore the trust that is necessary between themselves and the Civil Service. I therefore beg your Lordships' leave to withdraw the Motion standing in my name.
§ Motion for Papers, by leave, withdrawn.