§ 3.31 p.m.
The Parliamentary Secretary, Ministry of Agriculture, Fisheries and Food (Earl Howe)
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee. —(Earl Howe.)
§ Lord Cledwyn of Penrhos
My Lords, before we proceed to Committee I should like to say a few words on behalf of my noble friends on this side of the House and also on behalf of noble Lords of the Liberal Democrat Party.
It became clear in the Second Reading debate of the Bill that there is a great deal of uncertainty in regard to its scope and meaning. As a result the noble Lord the Leader of the House arranged a meeting on 22nd June to seek to clarify the position. We were grateful to him for that.
The responsible Minister, the right honourable gentleman the Chancellor of the Duchy, Mr. William Waldegrave, was good enough to attend that meeting and the assurances we were given tended to allay our apprehensions. We were told that the purpose of the Bill was not to introduce market testing, contracting out or privatisation. Of course, Parliament must scrutinise an enabling Bill with special care, as noble Lords will concede. But we have an uneasy feeling that behind the innocent facade stalks the menacing spectre of Henry VIII.
Following the meeting on 22nd June we are informed that a meeting was held between Cabinet Office officials and representatives of the Civil Service trade unions. Union officers left the meeting feeling that the responses on the central issue of market testing and privatisation were still ambiguous. Their impression was that although the Bill is not directly aimed at those matters, it is nevertheless part of a process for facilitating them.
1063 The noble Earl, Lord Howe, will be aware that we are concerned, first, about the alleged need for primary legislation. We were never sure about that. It is a complex matter because it still affects the Royal prerogative. Since 1968 considerable powers have been vested in the Minister responsible for the Civil Service. We are told that functions cannot be delegated by transfer of functions orders. Is that the legal position? The House needs to know that before we move into Committee. Is that the reason why the Bill is deemed essential? We need to be clear on that point also.
We were further told that the Bill will not authorise or facilitate market testing, contracting out or privatisation of the Civil Service. As I said, we appreciated that assurance when it was given to us at the meeting. However, I must put a crucial point to the Minister. Are the Government also saying that the policies outlined by Mr. Waldegrave in his speech of 1st June—that is, market testing, contracting out and privatisation on a large scale —can be implemented without further legislation in Parliament?
At the meeting of 22nd June the Minister said that there would be a parliamentary debate on the policies outlined by him in his speech of 1st June. No doubt that can be confirmed by the noble Earl today. I shall be most grateful if either the Leader of the House or the noble Earl can assist with the points I have raised.
§ Earl Russell
My Lords, it is proper that I should offer my apologies to the House for the fact that I was unable to attend the Second Reading of the Bill. Nevertheless, speaking rather more selfishly, I must admit to a certain relief that I was not present. Had I been present I may have found myself faced with a rather indigestible diet of words.
At present I believe that the Bill is not a conspiracy. However, it caused a certain amount of alarm, first, because of the lack of consultation with the Civil Service unions and, secondly, because of the absence of Notes on Clauses—in other words, the absence of any intelligible explanation of the Bill. Thirdly, it caused alarm because of the coincidence of its publication with the Minister's speech of 1st June on competition and market testing.
Since that time Notes on Clauses have become available—the most helpful documents to come from the Government for some time, containing a perfectly intelligible explanation of the Bill. I have now read the Bill several times. It seems to me appropriate for the purposes set out in the Notes on Clauses. They are purposes to which I have no objection. In due course, when we go into Committee, I hope to help the Government to achieve them.
My first object will be to make sure that the Government have not inadvertently enabled their successors to do things which perhaps they do not want to do but which others may want to do. For example, I wondered what the effect of the Bill would be on a proposal introduced in a subsequent Parliament for Scottish devolution. It is well known that that is something which I support and this Government do not. But I do not support it so blindly that I would wish to see it done without any further 1064 parliamentary scrutiny of the administrative changes involved. I wonder whether the Bill would involve that.
Secondly, I shall be scrutinising the Bill to see whether it has perhaps inadvertently authorised some future government to privatise parts of the Civil Service. That is a purpose I would find extremely sad.
§ Lord Harmar-Nicholls
My Lords, does not the noble Earl think he is out of order in making a Second Reading speech? The issue before the House is a point raised by the noble Lord, Lord Cledwyn. I wish to comment on that; the noble Earl is virtually making a Second Reading speech.
§ Earl Russell
My Lords, I am explaining why my reasons for supporting the noble Lord, Lord Cledwyn, are rather different from those that the noble Lord, Lord Harmar-Nicholls, may attribute to me. That, I hope, is in order. I was explaining that, although I do not regard the Bill as a conspiracy, it has caused considerable alarm. Since the publication of the Notes on Clauses I have attempted, in conversations with a number of people who may be affected by the Bill, to try to dispel that alarm. I found that to be a surprisingly difficult task. It is one on which I am entitled to ask for the Government's help.
I now come to the nub of my answer to the noble Lord, Lord Harmar-Nicholls. It is not at all clear that the purposes outlined in the Minister's speech of 1st June would require further legislation. The question therefore arises of whether they should be scrutinised while we are dealing with the Bill or whether they should be scrutinised on some future occasion—for scrutinised they must be. Those who support them may agree to that equally with those who oppose them.
There are some quite significant changes. They may not be directly connected with the Bill; they could be indirectly connected. They could change our constitutional arrangements quite fundamentally. Therefore, before we go into Committee on the Bill and accept the Government's reassurances—the noble Lord perhaps now sees why I began by explaining that, provisionally at least, I accept those reassurances —I should like to ask whether the noble Earl, when he replies, can undertake that the proposals in the Minister's speech on 1st June will receive parliamentary scrutiny before any significant action is taken upon them. I am asking whether we can have a scrutiny of those proposals separate from the Committee stage of the Bill. That means a debate in government time before any action is taken. It means significant consultation with the Civil Service unions. When I hear the noble Earl's answer to that, which I await with interest, I shall then consider the Motion to go into Committee.
§ Lord Boyd-Carpenter
My Lords, before my noble friend replies to the very important points raised by the Leader of the Opposition and to what I may describe as the Second Reading speech of the noble Earl on the Liberal Benches, perhaps I may ask him whether he appreciates that to many of us it seems that the points raised by the Leader of the Opposition 1065 would be considered in Committee much more conveniently and more in accordance with the rules of order. They will arise indubitably on several of the amendments which are already on the Marshalled List. I suggest that the right thing for your Lordships to do is for the House to go into Committee and for these matters then to be discussed.
§ Lord Harmar-Nicholls
My Lords, quite apart from the point put by my noble friend, I believe that the intervention made by the noble Lord, Lord Cledwyn, should be looked at from a parliamentary point of view. He reminded the House that the Government offered to meet to discuss certain feelings of difference with the Opposition. That was honoured and the meeting took place. We are told that it was attended by the right honourable Minister who is responsible for eventually getting the matter to the statute book.
At that meeting the Opposition clearly must have been satisfied. Following it there was no question that the parliamentary contact was anything other than satisfied with the explanation given. This is the point that disturbs me. The noble Lord, Lord Cledwyn, then said that an outside union had information which was obviously not known at the parliamentary meeting. That convinced the noble Lord that what had been said were not the facts. I should like to know what were the grounds which any union could have for implanting that state of mind in the noble Lord. How did the union get the information which caused that response? Are we now again in the position of having another leaked document where Ministers' advisers have leaked information which has not been made known? The noble Lord has raised a matter which stands on its own, quite apart from the procedures which take place when we go into Committee. This matter is very important. Why should some outside interventionist, who is not in a position to know the facts officially, be able to have information which influenced the noble Lord to the point where he wants to hold up the normal proceedings?
§ Baroness Turner of Camden
My Lords, perhaps I may help the noble Lord. When we raised the matter at Second Reading we complained that there had been inadequate and indeed no consultation with the unions. We then had the meeting to which my noble friend Lord Cledwyn referred. It then transpired that there had been further discussions with the unions. But they reported to us that what had emerged had not been totally in line with what had transpired at our meeting with the Secretary of State. It is arising from that situation that we have raised these points. There is no leak or anything of that sort; the matter arose precisely from the consultation process.
§ Lord Elton
My Lords, is it not quite extraordinary that we should be holding up our proceedings in order to discuss matters which appear to be largely hearsay and which have been raised by Members of your Lordships' House between one stage and another when we have a perfectly satisfactory stage in which to debate these issues? Noble Lords who are interested already know from the Order Paper that they should attend.
§ 3.45 p.m.
§ Lord Houghton of Sowerby
My Lords, I hope that noble Lords on both sides of the House will try to keep a little cool on this matter. This is the first time in the 18 years I have been in your Lordships' House that we have had any full-dress debate on the Civil Service. That of itself is remarkable because, generally speaking, the House of Commons regards itself as responsible for the Civil Service to the extent that it is necessary for Parliament to come into the matter at all.
I do not believe that your Lordships fully appreciate the atmosphere of apprehension and suspicion which the Government have aroused throughout the Civil Service by talk about privatisation, putting jobs out to tender and testing the market on price and effectiveness. The Minister concerned, who is the Chancellor of the Duchy of Lancaster, should not have made the remarks that he did to the Sunday Times without having made them somewhere else a little closer to those concerned on both sides.
There is such a thing as the Civil Service National Whitley Council. It has not been convened to hear anything about this issue. It is true that that council is a large and august body. It has representatives from both sides with heads of department in large numbers to see and to take part in the proceedings. They do not meet unless there is a situation of considerable gravity arising in connection with Her Majesty's Civil Service as a whole. This is such a case.
The Government are proposing reforms which are equal in significance and importance to those made over 100 years ago in an entirely opposite direction by Sir Stafford Northcote. That was then the basis: centralisation, uniformity, standardised recruitment, stopping log-rolling and all that kind of thing. The Civil Service has been built on the traditions that were then laid down. Now the Government believe that there is an opportunity, and probably a need in certain ways, to do something drastic in order to try to revitalise, if you like, the vast public service which is now far beyond anything contemplated 100 years ago.
What the Government are doing is so indefinite and imprecise, yet full of potential threats to jobs, that your Lordships' House cannot expect those of us who are deeply concerned with the Civil Service and who have spent a lifetime in its work, to sit here and see a spirit of co-operation and a constructive approach to these matters destroyed by incompetent presentation and procedure.
Therefore, in the interests of peace in the Civil Service and of what is fair to it, an opportunity should be taken to outline the strategy and the machinery for these changes for the benefit of the Civil Service as a whole. This is not a fractious request. It is necessary in order to avoid laying the seeds of further trouble. I plead with your Lordships for a little patience on this matter.
It is no good some noble Lords shaking their heads. Either they give attention to this matter or they may not. If they do not, they cannot expect co-operation from those of us who feel very deeply about it. I do not believe that this House should proceed with the Bill until opportunities have been taken for the fullest 1067 consultation with the Civil Service staff and these matters have been outlined for the benefit of both Houses of Parliament.
If noble Lords ask whether this Bill has been handled in a competent way perhaps I may remind them that at Second Reading we were all in a serious dilemma in trying to understand it. We do not have Notes on Clauses, which we understood were intended to be in our hands. They did not arrive. That Second Reading was largely futile because we were at cross-purposes. We believed that this Bill contained the potential for widespread powers to dispose of Civil Service work and personnel. The Government tried to explain that it is a technical Bill and not of very significant importance. Now we have discovered, having had interviews with the Minister and an exchange of documentation, that if we had been fully informed on Second Reading as to what the Bill meant it would have been a more fruitful debate. However, we are now in possession of that information and the more information that we get, the more concerned we become. Already some steps have been taken in one government department to shift work out of the Civil Service altogether and to put it out to contract.
The new headquarters of the Inland Revenue are now up in Nottingham and a contract has already been placed with Blue Arrow Personnel Services. Some of us have heard of Blue Arrow in a different connection—nothing to its detriment, but it certainly excited a certain amount of public attention. Work has been put out to contract with Blue Arrow. Those of us who are concerned should be able to see the framework of that contract because seeds of discord can arise on the conditions of contracts which are at variance with those in the Civil Service, especially if there is to be any juxtaposition of contracted staff and civil service staff. Do your Lordships not realise what problems we can get into? I warn your Lordships that there is serious unrest about this. Somehow or other, it must be cleared up.
I said on Second Reading that it was probably a pity that this Bill was introduced into your Lordships' House at all because what should have happened—and what should now happen—is that the issue should go before a Select Committee so that evidence can be taken and explanations can be given about the Government's intentions. However, nothing of that kind is on offer. I believe that the Civil Service National Whitley Council is entitled to be convened to hear authoritative statements from Ministers.
Perhaps I may also suggest that the ministerial arrangements for this Bill are quite unusual, to say the least. In what circumstances is the Duchy of Lancaster now taking the part of a Minister of controversial duties in the public service? With great respect to the noble Earl, Lord Howe, he is Parliamentary Secretary to the Ministry of Agriculture, Fisheries and Food. This Bill is the first paving-stone up the path that the Government wish to take, and they have appointed the Parliamentary Secretary to the Ministry of Agriculture, Fisheries and Food to lead us there. With great respect to the noble Earl, he has no connection with the administration of the Civil Service. He is not, 1068 so far as I know, a Minister in the Office of Public Service and Science, which apparently is the new title of the department which is responsible for the Civil Service. Part of the difficulty arose last time because we were not informed—and nor, I submit with every respect, was he—about the real significance of the document that he was handling.
The Bill is disrespectful to the Crown and is almost a contempt of the Civil Service. I am referring to the way in which this Bill seeks to make statutory provision for shifting work which has already been devolved by the Crown into the hands of Ministers of State, in respect of whom specific provision for the transfer of functions has already been made. However, this Bill proposes that that should now he opened more widely without further reference to Orders of the Privy Council. A serious constitutional question is involved. The way in which the Royal Prerogative can be frittered away by Parliament in this way raises some questions of formality in a constitutional form.
I am sorry to take up the time of your Lordships' House, but I am probably the only spokesman who, because of my close contacts with the staff movement in the Civil Service, is fully informed about the significance of this matter. I feel that, at the very least, we are entitled to have put on the record of this House some summary of proceedings since Second Reading which, in the view of the Government, provide the basis for making progress with this Committee stage. I repeat that it is a Committee stage and we cannot be hurried over it. Each one of the amendments raises different aspects of the matter. The amendments are intended to curb and to inhibit the excessive powers that are given in an enabling Bill. It is always the case that enabling Bills are intended to be as wide as possible.
Well, I have had my say and it is for the House to decide what it does next—and it is for us on these Benches to decide what we do next.
My Lords, I am grateful for the opportunity to respond to the points that have been made by various noble Lords, and in particular by the noble Lord, Lord Cledwyn of Penrhos, and the noble Earl, Lord Russell. I welcome the latter's support for the thrust of the Bill. I hope to allay any residual misgivings that he and other noble Lords may have about it.
There are two main points on which the noble Lord, Lord Cledwyn, asked me for a response. I shall deal first and simply with the question that the noble Lord asked me about market testing and contracting out. However, before I do so, I should like to make it absolutely clear from the outset that there is nothing in this Bill which the Government need to enable them to pursue their market testing policies. The purpose of the Bill is to allow for the more effective management of services which are kept within the Civil Service. As I stressed several times on Second Reading, it has no bearing either on our market testing policy or on the ability of the Government to contract out services where to do so would achieve better value for money. I hope that we can keep that clearly in mind throughout this afternoon.
1069 I have said that the Government need no new powers to enable them to contract out activities. Even if they did, the Bill would not grant them. The Government have been contracting out work to the private sector and buying in services from the private sector for years. Noble Lords may like to refer to page 8 of the White Paper Competing for Quality to remind themselves of that. It lists a wide range of functions that are already provided by the private sector, including building and construction, refurbishment, estate management, the bulk of the central government road programme, cleaning, laundry, catering and so on.
Having said that, there is no doubt that the Government's policy on market testing has attracted a good deal of attention both in the press and elsewhere. Perhaps that is why it reared its head as an issue on Second Reading. The noble Lord, Lord Cledwyn, has asked that the House be given, at some convenient time, an opportunity to debate the Government's policies on contracting out and market testing. I am happy to confirm to him that we shall do so, though, as I am sure he will understand, I am afraid that an opportunity will not present itself this side of the summer break. However, we shall do our best to find a slot for it later in the year.
Having dealt with what the Bill is not about, let me now turn to what it is about. In particular, I should like to address the question that was raised by the noble Lord, Lord Cledwyn, concerning consultation with the Civil Service unions. There are three levels of consultation which are relevant to this Bill. First, there is the question of consultation over the Bill itself. Secondly, there is the question of consultation over the making of delegations by the central departments. Thirdly, there is the question of consultation over the use, by departments and agencies, of the powers delegated to them under the Bill. I shall have more to say on the last two points when we come to debate the relevant amendments, but my main focus now is on the first—the question of consultation over the Bill itself.
The Government accept that the introduction of the Bill may have appeared to the unions to be rather sudden—and so it was. However, I hope that the noble Lord will accept my assurance that there was nothing underhand about it. The unions have been aware of our intention to legislate on delegation for almost a year. As I have said before, it was clearly indicated in the Citizen's Charter White Paper which was published in July 1991. The Government had always intended to consult the unions over the Bill before its introduction and, with hindsight, the Government recognise that it might have been helpful to take the unions into their confidence rather sooner. However, I emphasise that in practical terms that would have been difficult. The legal complexity of the Bill meant that its final scope was determined only shortly before officials wrote to the unions to alert them to its introduction, and everything was done to let the unions know as quickly as possible of developments as matters progressed. A slot for legislation then presented itself in your Lordships' House, and we seized it.
1070 I accept that the history of the Bill may have given the unions a whiff of conspiracy when, in fact, no conspiracy existed. But it is also important to keep these matters in perspective. This is not a major constitutional Bill with widespread ramifications for the future of the nation. It is, as I have said before, a minor, technical measure of very limited scope.
Whatever the shortcomings of the consultation with the unions before the introduction of the Bill, they have been adequately redressed since. I believe we are here dealing with a question of timing as much as one of substance. Since the introduction of the Bill, officials have spent a good deal of time and effort addressing the unions' concerns. Two meetings, comprising in all five-and-a-half hours of discussions, some of them late into the night, have been held with the unions to respond to specific questions they have put to the Government. The unions have had written answers to all the questions they have put to us. We have worked hard—as have the unions—to address their concerns and to ensure that they have a full understanding of the issues involved.
That does not mean that the unions have come in the past fortnight wholeheartedly to embrace the Bill. Their more deep-seated concerns about the purpose of the Bill, which were in any case pretty wide of the mark, have, I think, been allayed, as, I trust, have the corresponding concerns of the noble Lord. I hope that we can now put those misunderstandings behind us. What are the unions' concerns? With respect to the Bill, they remain, I believe, concerned to ensure that there will be adequate consultation with staff before anything is done which might affect the welfare of the Government's employees. Let me immediately give assurances on the question of consultation. The Government have no intention of denying civil servants generally any rights that would be available to other employees. If terms and conditions of staff are to be changed as a result of any powers delegated under the Bill, those who are affected will be consulted, as they have always been. The Government have no other intention. And there is nothing in the Bill that would give the Government as an employer any rights to avoid consultation. We shall consult on all relevant matters.
I should make just one further point. It is a point which may not have been fully appreciated earlier but I think it is relevant. I said just now that the Bill is a minor measure of limited scope. The sole purpose of the Bill is to give the Treasury and the Minister for the Civil Service powers which would be available to any other employer but which, through a technicality—and that is all it is—are currently denied to the Government. No large corporation is constrained by legislation, or even by its shareholders, from delegating powers from one level of the organisation to another. I suspect that any large business would find it most surprising that the Government have to seek legislation to allow them to move management decisions from, as it were, their corporate headquarters to their individual operating companies. Yet that is all we are seeking here.
Nonetheless, if it would reassure the noble Lord, I can categorically assure him that the Government 1071 intend to consult the Civil Service unions over the making of major delegations. That is precisely what has been done when discretions have been given to departments and agencies, and the Government have no plans to change that practice.
As any sensible employer would, the Government consider it important that staff know with whom they are dealing in respect of their terms and conditions. We shall ensure that they do. Beyond that, staff will still be entitled to, and will receive, the opportunity either directly or through their representatives to influence the outcome of any proposals to change their terms and conditions. I welcome the opportunity to give the House those assurances and, in the light of them, I hope that the noble Lord will feel able to allow the Bill to proceed to Committee.
§ Lord Cledwyn of Penrhos
My Lords, I am obliged to the noble Earl for his explanation and for the assurances which we on this side appreciate. Can he clarify one point? He and his colleagues now say that the policies outlined by the right honourable gentleman the Chancellor of the Duchy in his speech to the meeting arranged by the Sunday Times can be proceeded with by way of secondary legislation and that primary legislation will not be needed for substantial privatisation in the future.
My Lords, as I understand the position, if privatisation is being talked about, we shall need primary legislation; if contracting out is being talked about, which is what I referred to earlier, we do not need any other legislation.
§ Lord Cledwyn of Penrhos
My Lords, I am much obliged. In those circumstances I do not think that we on this side would object now to proceeding to Committee.
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The Lord Murton of Lindisfarne in the Chair.]
§ Clause 1 [Delegation of functions]:
Lord McCarthy moved Amendment No. 1:
Page 1, line 8, leave out from ("which") to end of line and insert ("is the subject of the Civil Service Orders 1968 (SI 1968/1656) and 1971 (SI 1971/2099) and the Transfer of Functions (Minister for the Civil Service and Treasury) Orders 1981 (SI 1981/1670), 1987 (SI 1987/2039) and 1991 (SI 1991/188)").
§ The noble Lord said: In moving this amendment I shall speak also to Amendment No. 10. The Government have said that this is a minor Bill. This is a minor amendment. The object of the amendment is to make clear on the face of the Bill that the Government indeed mean what they say they mean —that is, that the Bill applies to existing TFOs and only to existing TFOs and to no further TFOs; that the area to which it applies is the area of personnel matters; that it has nothing to do with organisational change, nothing to do with privatisation, nothing to do with market testing, and so on. The Government can make this clear beyond peradventure by accepting this amendment and a number of other amendments which other Members of the Committee on this side will be pressing later today.1072
The amendment works by deleting the last sentence in Clause 1(1),
which has been the subject of a transfer of functions Order",
which, it will be noted, is in the past tense and in place of that general statement inserting a list of the actual transfer of functions orders as we understand it and as Sir Peter Kemp informed the union in a technical note —all those transfer of functions orders listed in the amendment. If Amendment No. 1 is agreed to, we do not need subsection (5) and therefore Amendment No. 10 seeks to delete it.
§ I remind the Committee, because I am not sure what the Government will say, that the Government have repeatedly told us that they are concerned only with past TFOs. The best example of that we have had is a statement saying that it was typically—that was the phrase used—the power to determine numbers, pay and other conditions of service. In other words, only those typical functions are to be affected. Of course, there might be other atypical functions. If the amendment is not passed, I submit that the Bill could be read to mean that further transfer of functions orders could be passed which would not simply affect the past, because once they are passed they are for the purposes of the Bill the past. Everything could then be introduced and a wide number of issues could be said to be personnel. One could reorganise offices, shift work, take away work, completely redeploy staff and then call that personnel deployment. But that is not what the Government say they want to do. The Government say that they merely want to take these powers of delegation for existing TFOs and past TFOs.
One of the curious facts about the face of the Bill and one of the reasons why staff were concerned—it was not because of leaks but because they could read the face of the Bill—is that it is couched in general terms. There is nothing on the face of the Bill about personnel management. The term does not appear. There is nothing on the face of the Bill about pay and conditions. The Preamble to the Bill states:
An Act to make provision with respect to functions relating to the management".
It does not refer to personnel management. It does not refer to personnel functions. Clause 1 of the Bill states:
This section applies to any function".
It does not refer to personnel functions. It is not clear why it should not apply to past functions or future functions. Yet the Government have told us that it is only intended to apply to those TFOs which they have already passed and that those TFOs typically concern personnel matters. Well, as I said, they can prove that beyond peradventure by supporting the amendment. I beg to move.
§ Earl Russell
I am happy to support the amendment with a few brief remarks. The TFOs named in the amendment are, I believe, of the Government's own selection; in other words, they are the ones named in the Notes on Clauses. One of the questions which concerns us here is why primary legislation has been necessary for the Bill. It is, therefore, relevant to ask whether primary legislation is necessary specifically for some reason connected with the particular TFOs that have been mentioned, or for some reason relating 1073 to all TFOs—that is, past, present and even future. Answers to that and to the amendment, which is a probing one, would help us to understand why the Bill has been tabled and why it has been tabled in the form of primary legislation.
§ Lord Houghton of Sowerby
Perhaps I may make an observation on the amendment. Usually, an enabling Bill is constructed and debated in the context of a purpose which is clearly understood. In many cases, enabling clauses of Bills are merely to give delegated powers to the Minister to carry out the broad intentions of the Bill and of Parliament. But here we have an enabling Bill which has a very obscure object: to relieve Ministers of the need to get a transfer of functions order before they can pass on to some one else delegated authority which has been given to them. In other words, the Bill seeks to open the field for the transfer of functions from one department to another, provided that there is a civil servant at the end of the transfer, without having to come back for further functional transfer orders.
We should bear in mind the fact that these are not statutory instruments; they are Orders in Council; we are dealing with the Royal prerogative. That is what makes it so tricky and difficult. I fear that this may be the only Bill that it will be necessary to bring before Parliament before the Government can set about what appears to be promised in newspaper headlines—for example, "130,000 Jobs Are Put at Risk". It really is an astonishing situation. It is done under the procedures whereby Parliament has no direct control over some of the functions of the Crown; they are taken by law and under certain conditions. The clause proposes to remove those conditions. That makes us all the more reluctant to go along with what the Government propose. We really do not know where they are going. Enabling powers of that sort ought to be accompanied by some indication of what use is to be made of them.
Can the Minister give Members of the Committee an example of what they may want to do with the powers that the clause would confer on certain Ministers? We were not really impressed by the condition—although the Minister seemed to think that we should be—that the transfer on and on and on could only be to a civil servant. We thought that the Government, in their subtle approach to the whole question of privatisation and so on, might create a Civil Service post to which these delegated powers could be transferred within the meaning of the clause; for example, that they could create a director of delegated services in a particular region and give him the power of an inspector, an ombudsman, a referee or whatever with the duty to look at the propriety of some of the practices that may be undertaken on a contract which is transferring work, without coming to the House or to the Crown for an order.
I wish we knew what the Government have in mind. They are asking for such powers without disclosing what is up their sleeve. That is the trouble. Who is in danger here? What kind of work will it be? Will it be statutory work under the income tax Acts? Will it be 1074 statutory work under the Customs and Excise Acts? What is to be? Alternatively, will it affect supporting services?
So far as I understand it, Blue Arrow in Nottingham is contracted to supply supportive services and not to come into the field of actual tax assessing. The company will not lay any charge on the citizen. But let us be careful, if we have a transfer of functions it is possible that under an Act of Parliament —for example, a finance Bill—certain taxation duties may be required and they could be passed on to a private firm to administer. The Bill is full of mischief and potential trouble. I cannot believe that noble Lords on the opposite side of the Chamber understand what is afoot. Therefore, if they do not understand what is afoot, they must not be astonished if they find that the Civil Service rises in its wrath a year from now and says, "We won't stand for it". I do not want to rumble dire threats of trouble ahead, but already this year the conferences of some of the unions have had great difficulty in keeping to the constructive line of discussion when so many people want militant display. That may not be so easy to do a year hence when people begin to see what can happen.
Finally, without knowing what the Government propose to do, without knowing what the terms of the contract will be to transfer government work to private enterprise and without knowing about the conditions of service that they will impose on the workers—and all the other matters that give rise to friction and difficulty when dealing with staff and the distribution of work—I believe that there is room here for a bundle of trouble. Yet nothing has been said either by the Minister in the other place or by the noble Earl. Do they have one single item in their minds about what should be done and about what use they should make of the clause? If they do not have that, it seems to me that they are asking us to buy a pig in a poke. When they have the powers, they can then dispose of the prerogative where they like so long as a civil servant of one grade or another, or one of their own creation, is waiting to take direction over it. We shall come later to discuss what type of civil servant will be there; indeed, that is the importance of linking one thing with another. But, unless we know where we are going, we must be careful before we go from one stage to another. I make the plea: we are entitled to know where we are going. What have the Government in mind?
§ 4.15 p.m.
Perhaps I may first deal with one fundamental questions which was raised by the noble Earl, Lord Russell, and the noble Lord, Lord Houghton. It concerns the purpose of the Bill; namely, why do we need primary legislation? I think that I can encapsulate the reasons threefold. At present, we have a system whereby Orders in Council, by means of transfer of functions orders (TFOs, for short), transfer responsibilities between the Treasury and the Minister for the Civil Service. No delegation beyond the Minister for the Civil Service or the Treasury can take place. Therefore, the transfer of functions orders can only be used to transfer functions 1075 between Ministers, and not to permanent heads of departments or agency chief executives. That is the shortcoming of TFOs. There is also a need to delegate selectively—by function, by department or by agency. That potential number of delegations makes TFOs an impractical way of setting about the process of delegation.
As Members of the Committee will be aware, there is a system of discretions under which powers can be partially passed down the line; but they do not properly decentralise responsibility. There is always the need to refer back at the end of the day to the Minister for the Civil Service or to the Treasury. That is why we need a Bill of this kind. I have given that explanation off the top of my head but—if the Committee will forgive me—I do not believe that I shall need to correct myself. In broad terms, that is why we need legislation.
As it stands, Clause 1(1) defines the scope of the Bill in precise terms. Since 1968, various governments have transferred management responsibilities for the Civil Service between the Treasury and the Minister for the Civil Service. Those reallocations, as I have said, have been made by transfer of functions orders. They include all aspects of the determination of pay and other conditions of service of the Civil Service. It is those functions which the Bill is intended to cover. Other matters, such as the responsibility of the Civil Service Commissioners to ensure fair and open competition for entry to the Civil Service, have never been transferred, and are thus outside the scope of the Bill. Pension arrangements which also form a condition of service are also outside the Bill, being covered by separate legislation.
It may be of help to the noble Lord, Lord McCarthy, if I list the management functions itemised in the latest Civil Service Order in Council which was promulgated last year. That records that the Treasury has responsibility for numbers, grading, remuneration, expenses, allowances, hours of work, retirement and redundancy, reinstatement and redeployment, and qualifications for recruitment. The Minister has responsibility for regulating conduct and all other conditions of service.
As the Committee is aware, the Bill's intention is to facilitate the decentralisation of the Civil Service by allowing the central departments to delegate the management functions I have spelt out to departments and agencies. Typically it will be, as I said on Second Reading, to Ministers in charge of departments or the heads of Next Steps agencies. Many of those agencies and departments are substantial employers. We believe, subject to conditions which may be set by central departments, that the interests of good management dictate a need, where justified, to grant those organisations greater freedom to manage their own affairs.
The amendment lists all the transfer of functions orders which have been introduced since 1968. I hope that I can persuade the noble Lord, after consideration, to withdraw the amendment. I can, first, confirm that the Bill applies currently to those orders listed in the amendment only. The amendment 1076 therefore adds nothing to the Bill as it stands. However, the effect of the amendment would be to place an arbitrary time limit on the operation of the Bill. Future transfer of functions orders, intended to switch responsibilities between departments, might define existing functions in different terms. The amendment would have the effect of introducing an area of doubt as to whether those functions could be delegated. I trust that the noble Lord will accept that that would be an undesirable and confusing state of affairs. On that basis, I hope that he will withdraw the amendment.
§ Lord McCarthy
I thank the Minister for that answer which was unsatisfactory. In the answer he gave to my noble friend Lord Houghton he said that the purpose of the Orders in Council was to transfer responsibilities from one department to another. He said that that meant one could not transfer down to agencies. We do not understand why—if there is a transfer from one department to another, and that department has the powers—that department itself cannot decentralise and push those decisions further down. We do not understand that, because it has happened all over the place. The Government have given us one concrete example. On 15th June the Minister gave us examples of what the Government would use the power for. He said:I cite as an example HMSO's responsibility for the pay of its staff".That has been decentralised. He then said:There are many others which we would like to delegate; for example, the power to determine pay and grading structure". —[Official Report, 15/6/92; col. 30.]That has been decentralised. He talked about performance-related pay. That is going on all over the Civil Service. In other words, the very powers that he claims are so essential in the Bill are already being operated and practised by chief executives and other people. If the Minister wishes to intervene I shall of course give way.
I said that, under the system which currently operates, those powers are partially delegated under what are termed "discretions". It is not a complete delegation. A discretion is given to set various terms of service, but in the end Ministers, or whoever has those discretions, have to refer back again up the line. They do not have freedom of action. They are discretions and therefore an unsatisfactory form of delegation. That may be what the noble Lord has in mind.
§ Lord McCarthy
I have to ask again—since a degree of delegation and decentralisation has been done with discretion—what can be done further that can be done only with the Bill. I pass on, because I want to come to what the Minister said about the amendment. What he said shows that the Government do not mean exactly what they have said. He said that at some time in the future the Bill could be used to introduce TFOs which go beyond personnel. He said they could go into pensions and recruitment and such things which the Government do not intend them to go into. With the Bill they could go into those things. 1077 The only way to stop them is to accept the amendment, which is what the Minister does not want to do.
The noble Lord is incorrect. A future transfer of functions order would be caught by the Bill but it must relate to management functions in respect of the Home Civil Service. That is the point. Those management functions, as I have said, embrace staff pay, staff terms and conditions of service, and those functions that I listed earlier. Future TFOs will have to follow that pattern. I hope that that is a reassurance.
§ Lord Houghton of Sowerby
Is there a working model of this anywhere? Has a pilot scheme of any kind been carried out? We have heard only pure theory about all these matters. They have not been translated into practical or feasible terms. In those circumstances, we may be walking in the dark. This is a momentous change which Mr. Waldegrave in his Sunday Times seminar lecture said would have an enormous effect. When one is embarking upon something which is capable of having an enormous effect I should have thought that someone would have wanted to carry out an experiment in branches of work in particular departments which are already available for transfer to find out what will happen.
The Nottingham scheme—I do not know from where the authority came to start it—has not yet begun. However, preparations have been made and, as I understand it, the contract has been placed. I do not know whether that is a standard form of contract. I have seen a ministerial letter of some kind relating to guidelines on the transfer of legal services. What does that mean? Guidelines to what? The position is uncertain. One wonders where one goes for information. We have the curious set-up of the Duchy of Lancaster with a Parliamentary Secretary. In this place there is a Parliamentary Secretary to the Ministry of Agriculture, Fisheries and Food. That is based no doubt on the fact that he knows a great deal about sheep, and the Government think that sheep we are all going to be.
The Bill is ill-prepared from top to bottom. There is no sign of any constructive work being done by those engaged in the tasks that anyone can observe or understand. That is one of the reasons why there should be a meeting of the Civil Service National Whitley Council. I hope that the staff side will demand one, because it would bring to the council all the permanent heads of department involved. At present no such gathering, so far as I am aware, has taken place.
§ 4.30 p.m.
I have already given the Committee an assurance about consultations with the unions. We have had extensive talks with them and have replied to their questions in detail. I believe that on the whole they are satisfied with those answers. I have also given assurances about future consultations on delegations.
Regarding specific points raised by the noble Lord, at present there is a need to act in accordance with a central legal framework, which means that residual 1078 central rules have to be retained even when they are unnecessary and where it would otherwise be desirable to delegate completely to departments and agencies. For example, we have had to abandon proposals to allow departments and agencies to devise their own rules on probation, on age limits for recruitment and on performance pay and incremental progression for home workers, because that would have resulted in the central departments giving up too much of the responsibility placed upon them by the Order in Council.
The noble Lord asked whether we have a pilot project. No, we have not, precisely because we need primary legislation of this kind before we can put a pilot project in place. The noble Lord, Lord McCarthy, asked why we could not use TFOs in relation to departments to allow them to decentralise. The main reason for that is the sheer range of delegations that may be required. There are many departments and agencies. We may wish to delegate to all of them, to some of them, to a few of them or only to one. Delegations may need to he altered or withdrawn. TFOs would be an impossibly cumbersome way of achieving what we want and I think that, as we proceed with the Committee stage, the noble Lord will understand that the Bill is a much more flexible and amenable way of achieving what he, I am sure, wishes: namely, the better management of the Civil Service.
§ Lord McCarthy
I do not want to drag this debate on because the noble Earl will have many opportunities in regard to subsequent amendments to show that he is in fact flexible. I therefore beg leave to withdraw this amendment.
§ Amendment, by leave, withdrawn.
Lord Cledwyn of Penrhos moved Amendment No. 2:
Page 1, line 8, at end insert:
("( ) In this section "servant of the Crown" means a Minister of the Crown, a member of Her Majesty's Home Civil Service or a holder of a statutory office.").
The noble Lord said: I beg to move the amendment standing in my name and the names of the noble Earl, Lord Russell, and the noble Lord, Lord Allen of Abbeydale. As the Committee will be aware, this amendment lies at the heart of our concern about this Bill, and its objective is pivotal. There have been discussions on the issue both during and after Second Reading, and the Chancellor of the Duchy was good enough to deal with it in his letter to me dated 18th June. I will read the relevant paragraphs out of respect for the right honourable gentleman. They are as follows:
The drafting of the Bill restricts its scope to the delegation of management functions to 'a servant of the Crown'. That immediately renders the Bill quite useless as a mechanism for contracting out a task or transferring an organisation to the private sector. Its purpose is rather to permit management responsibilities within the Civil Service to be reallocated, where appropriate, within the Civil Service itself.
I am afraid the confusion may have been caused by the phrase 'servant of the Crown'. This is a technical term covering Ministers, civil servants, members of the armed forces, diplomats and a new small group of public servants and it is used in the Bill on legal advice. The term explicitly excludes private citizens and private companies. The Bill
cannot therefore empower ministers to delegate the management of Civil Servants to the private sector and cannot therefore be used in any way to support contracting out or privatisation.
Market testing and, where appropriate, contracting out, remain important elements in the Government's strategy for continuously improving value for money in the public sector. It is right that we should be tested on matters of policy and principle in the Second Reading stage. But I hope you will recognise that the issues raised are not in any practical sense related to the Bill itself.
§ I say at once that we must give due weight to the words of the right honourable gentleman. Notwithstanding that, the Bill as drafted has raised many questions about the term "servant of the Crown". I am informed that there has been a "lexis search", which has shown there is no particular reason why the phrase "servant of the Crown" is used in preference to "Crown servant". The two terms seem to be interchangeable and have been used in a number of statutes over the years, as many of your Lordships may recall. In a recent Act, the Companies Act 1989, both terms are used. There appears to be no definitive explanation why in any particular Bill one term is used in preference to the other. Further, we are told that there is no distinction between the terms, and then we hear that the Treasury cannot prove that there is no difference.
I must stress that it is crucially important that there is no ambiguity about this term in the Bill, not least because the Government have made plain their aim to contract out civil servants' work. It is therefore essential that there should be a clear and unambiguous definition of the category of person to whom delegation may be made. Furthermore, I understand that the Civil Service unions received a note from the Cabinet Office on the 23rd June, stating that:
the precise boundary of the definition of 'servant of the Crown' is not established.
§ The object of this amendment is to define and clarify beyond reasonable doubt that group of individuals to whom delegation may be made. If the noble Earl argues that it is not wide enough to embrace members of the diplomatic service or the armed forces, it must be for the Government to make out the case for their inclusion. If the Minister does so, we shall be very glad to listen to the arguments.
Our chief concern, however, is not solely the term "servant of the Crown". It is the qualifying words in Clause 1(2); namely,
a servant of the Crown of such description as he may specify".
That is where the ambiguity lies. We have been told that those qualifying words are there to require a Minister to be specific about to whom the delegation is to apply. The nub of the problem is that the term "servant of the Crown" may be legally recognised, but it does seem that there is no clear established definition. In other words, the phrase,
of such description as he may specify",
could be used to delegate management functions to virtually anyone. I hope the Minister will be able to clarify this for us when he replies. For example, could the words not give Ministers authority to extend the meaning of "servant of the Crown"? The definition must be made clear in this Bill, as a lack of clarity
could mean that Ministers or, more importantly, some future Administration may totally redefine what is meant by this term. Ministers have given an assurance that the term is designed to be specific. If that is the case and if they are ready to stand by their assurances they should have no problem whatever in accepting this amendment. I beg to move.
§ Earl Russell
I should like to thank the noble Earl, Lord Howe, for the answers he has given so far. I have found them very helpful and I entirely accept the assurances that he and indeed the Secretary of State, in the letter just quoted, have given about the intention of the phrase which we are now considering, "servant of the Crown". What I am not certain of is whether the drafting of the clause is sufficiently precise to achieve what I accept is the Government's intention and therefore whether it might be further tightened. I have no trouble with the assumption that "servant of the Crown" means the same as Crown servant. I accept the considerable body of usage behind it. However, I should be glad to know whether there is law as well as usage behind it. I should like to know whether we have any statute law or any case law that gives a clear definition to the phrase "servant of the Crown". I am not myself aware of any. I have consulted academic colleagues who are also not aware of any.
If there is no clear, standing legal definition of the phrase, we are driven back to usage over quite a long period of our history. With that in mind I consulted an academic colleague who has been engaged in work on the meaning of the related term "King's servant". The advice which he gave me I found interesting. It was that the clause in the Bill is an entirely circular statement because anyone to whom a ministerial function is delegated in virtue of this order thereby and ipso facto becomes a servant of the Crown. Therefore the statement is simply tautological and the clause becomes our old friend, "the Secretary of State may do whatever he likes".
That has quite far-reaching implications. It means that under the clause as drafted it would be possible to transfer functions into the private sector, and anyone in the private sector to whom such functions were transferred would automatically become a servant of the Crown. I do not believe that that is the Government's intention. I look forward to co-operation in the tightening of the phrase to make clear exactly what is intended. By using an undefined term the Government slightly remind me of the candidate who entered for the Chancellor's English essay prize and began in the following manner: "I shall not define my terms; I do not like playing with marked cards." In this Chamber it may be rather more convenient to mark our cards and know exactly what we are playing at.
I should be glad to know whether the meaning of the term "servant of the Crown" is the same in Scottish law as it is in English law. I regret to say that the question occurred to me only at breakfast time today. The advice I have been able to obtain in the intervening time seems to indicate that the terms are 1081 the same in the two different legal systems. However, I should be glad of further reassurance before we leave the words as they stand.
The amendment defines the term more precisely. I do not think that we are wedded to the particular definition of what is meant. If the Government wish to put forward a different definition, which is equally tight, I am sure we would be prepared to consider it sympathetically. The trouble is that although all civil servants are servants of the Crown, not all servants of the Crown are necessarily civil servants. It is, for example, the effect of this amendment to block the transfer of functions to the Armed Forces who are servants of the Crown. There are certain circumstances in which I would be perfectly happy to see functions transferred to the Armed Forces, but I would wish to see those functions fairly carefully and tightly defined before the Bill leaves this Chamber. Lest I be misunderstood, I should say that I believe every noble and gallant Lord in this Chamber would say the same.
Similarly, Her Majesty's judges are Crown servants. Again, I can imagine certain functions which could properly be transferred, but one would want to know which these were. Members of the Forestry Commission are Crown servants but if we were to transfer the making of foreign policy to members of the Forestry Commission, the rain forests would be taken a great deal more seriously than they have been hitherto. I am sure the Committee will see why I should like a little more definition in the Bill.
§ 4.45 p.m.
As has been explained, the effect of the amendment is to define the term "servant of the Crown" in such a way as to restrict the range of persons to whom management functions may be delegated under the Bill. The Government believe the proposed restriction is unnecessary, and unacceptable as it stands, because, as the noble Earl said, the amendment does not include the diplomatic service and Her Majesty's Armed Forces. Members of those groups are servants of the Crown, but they may also be chief executives of Next Steps agencies with management responsibility for members of the home Civil Service. The chief executive of a Defence Research Agency, the Hydrographic Survey, is for example a serving naval officer. That is why members of the Armed Forces have to be brought within the scope of the Bill. The effect of the amendment would be to prevent delegation to such chief executives.
It is the intention of the Bill to enable the central departments, if they so wish, to delegate management functions directly to chief executives of agencies, all of whom are Crown servants. The many improvements in efficiency and customer service which Next Steps agencies have achieved are directly related to the management discretion they have been given to enable them to meet the exacting targets imposed by their parent departments. As I said, we believe that the process can be extended further by delegation to agencies which are ready to take on more responsibility for managing their own staff.
I turn now to the definition of "servant of the 1082 Crown". This is a difficult matter. I assure the noble Earl, Lord Russell, and the noble Lord, Lord Cledwyn, that the meaning of the term "servant of the Crown" is identical to that of Crown servant. There is no legal distinction that my officials can produce. Indeed in the 1989 Companies Act both terms are used. The noble Earl asked whether the term means the same in Scots law. My advice is that it does.
The noble Earl also asked about Clause 1(2) which states:a servant of the Crown of such description as he may specify".The noble Lord, Lord Cledwyn, also asked about that subsection. What does it mean? The phrase,of such description as he may specifydoes not permit any kind of redefinition of the term "servant of the Crown".
People to whom delegations are made must in the first instance be servants of the Crown. The qualification means only that the Minister may, if he wishes, specify either a named individual or the holder for the time being of the office. I am also advised, contrary to what the noble Earl told us, that the phrase is not circular. However, I shall he happy to go away and reconsider the matter before the Report stage.
I have heard with surprise some remarks in relation to an earlier amendment—I perhaps skirted over the point made by the noble Lord, Lord Houghton, on the previous amendment —that constitute what I would call scaremongering on the Bill. I hope that I have been clear enough in what I have said as regards what the Bill does and does not enable us to do. I should be interested to hear from the Opposition Benches any explanation of how contracting out can possibly be carried forward under this Bill. It cannot be done. I hope that I have allayed any residual worry to that effect.
If someone is in the employment of the Crown, he is a Crown servant. If he is not in the employment of the Crown, he is not a Crown servant. The Bill allows delegation and sub delegation where relevant only to servants of the Crown. No amount of ingenuity of interpretation can create the situation in which the Bill is used somehow to disenfranchise civil servants. The Bill does not empower the Government to allow a private sector employer to determine the terms and conditions of Civil Service staff. It cannot therefore empower privatisation. Having said that, I concede that there are some problems of definition in that area. The Bill uses terms which can be recognised as having some reasonably clear legal standing. It therefore uses the term "servant of the Crown", which includes Ministers, civil servants, judges, diplomats, members of the Armed Forces and members of the Forestry Commission. It also includes a wide range of smaller bodies which carry out functions on behalf of the Crown and statutory office holders.
As I said at Second Reading, the Government intend that in practice the vast majority of delegations will be made to Ministers and, to a lesser extent, to agency chief executives, who may come, as I have explained, from a number of different groups within the Crown service. The term "servant of the Crown" is used in the Bill to ensure that there is sufficient 1083 flexibility in the power to delegate while clearly retaining the management function within the public sector.
Nevertheless, I appreciate the points that have been made by Members of the Committee opposite. I should be happy to assure them that the Government will consider between now and Report stage whether it is possible to amend the Bill to make it explicit that delegation is only possible to servants of the Crown who are responsible for managing members of the home Civil Service. I hope that in the light of that assurance the amendment will be withdrawn.
§ Lord Cledwyn of Penrhos
I wonder whether the noble Earl could clarify one point relating to delegation to the Armed Forces. I understand that there are problems about extending the definition to members of the Armed Forces. It has been argued that if there is to be an extension to the military it should be confined to existing agency functions which are currently undertaken by members of the Armed Forces in the Ministry of Defence. Can the noble Earl please throw light on that question?
The noble Lord has bowled me out with that question. I shall write to him on that particular point. I hope that that does not affect his decision whether or not to press the amendment.
§ Lord Cledwyn of Penrhos
I am much obliged to the noble Earl for his explanation. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 3 not moved.]
Baroness Turner of Camden moved Amendment No. 4:
Page 1, line 10, after ("may,") insert ("by order made by statutory instrument").
§ The noble Baroness said: In speaking to Amendment No. 4 I should like to speak also to Amendments Nos. 11 and 12 with which it has been grouped. The three amendments are connected and have the same purpose. The intention is to try to satisfy the desire of Parliament to have the opportunity of scrutinising what is being done under the Bill when it becomes an Act.
§ It seems to me that the discretionary powers conferred on Ministers by the Bill are very wide. Nowhere is a limit to those discretionary powers laid down. Therefore the purpose of the amendments is to ensure that there is an obligation on the Minister when he exercises those powers to present them for parliamentary scrutiny via the affirmative procedures of both Houses. The point is a short and simple one. The Civil Service works for us and for the public; and Parliament is a public watchdog in these matters.
§ I accept that, as the noble Earl said this afternoon, it is not intended and indeed would not be possible to privatise without primary legislation. I am grateful for having that assurance on the record. However, the noble Earl said that it would be possible to contract out without further legislation, utilising the powers conferred on Ministers by the Bill. The object of this exercise is to ensure that when such proposals are 1084 made there is some means by which Parliament may scrutinise the way in which the powers are being exercised. I beg to move.
§ Earl Russell
I am happy to support the amendment and what the noble Baroness, Lady Turner of Camden, said about it. However, it is not only a matter of parliamentary scrutiny. It is necessary that within the Civil Service it should be known what functions have been delegated to whom. The Bill as it stands contains no provision whatever that the Minister should actually tell anybody when he has delegated a function. I should have thought that that was a necessary condition of delegating functions effectively. I should be very glad to hear the noble Earl's answer to that point.
§ Lord Prentice
Reading the amendments I was not sure whether they were intended as probing amendments or were to be taken literally. Having listened to the noble Baroness it appeared that she was asking the Committee to take them literally. If so, I can only suggest that they would make a very unsatisfactory situation a great deal worse.
Surely the situation we are dealing with is this. At present the Treasury and the Civil Service Department have to regulate all matters of importance. The Bill is intended to amend that situation. It is intended to create a more flexible system and to enable managers within departments or within the Next Step agencies to have responsibilities commensurate with comparable managers throughout the rest of our society. Under the present situation they are given the responsibility for management without the basic powers of management. The amendment would not merely cancel out the advantages of the Bill; taken literally, it would make a bad situation worse. It would create detailed supervision by Parliament of the administration of the Civil Service in a way we have never had before and which as far as I know no one has ever demanded before and no other major country in the world operates.
The amendment would be a prescription for long delay; it would be a prescription for overloading both Houses of Parliament to a considerable extent. Above all, I am worried about the effect on line management within the Civil Service and the agencies. People in line management would be discouraged from suggesting reforms which would mean delegation of powers to themselves or their colleagues. At best it would mean that, when delegations were being framed for which statutory instruments would have to he brought before Parliament, managers would try to pack in as much as possible so that the proposals would become general rather than specific, leading to all kinds of difficulty. At worst, those managers unwilling to ask for extra responsibility and to show the initiative that we require would say, "Well, I had better not do it because it might upset my superiors as they would have to go to Parliament".
I suggest to the Committee that the amendment sends the wrong message. The message that we—in all parties—ought to be sending to managers within the Civil Service and the new agencies is: seize the new powers; take initiatives; work out ways in which you 1085 can give a better service to your clients; and then ask for the changes which are needed. What should not be sent is a negative message, and I fear that that would be the effect of the amendment.
The three amendments have an almost identical effect. As the noble Baroness explained, they would require the Government to achieve each delegation by statutory instrument. Amendment No. 11 goes further by requiring the draft of such a statutory instrument to be subject to approval by both Houses of Parliament.
I have to say, with great respect to both the noble Baroness and the noble Earl, that the amendments would run entirely counter to the better management of the Civil Service, which is the sole aim of the Bill. The Bill deals with an inflexibility of the management system which has hampered decentralisation. It gives the central departments a flexible power to introduce, extend, restrict and withdraw delegations. It allows them to delegate across the board, to some departments or to only one department. The amendments would not only prevent that flexibility but make decentralisation extremely difficult and cumbersome to achieve.
There may be many delegations of quite small matters to departments and agencies. An agency may perhaps be given the right to introduce a tailor-made pay scheme to encourage home working. A department may be given the right to determine its own probation arrangements. Another agency may be given the power to determine its own arrangements for dealing with disciplinary matters.
Is the noble Baroness saying that such small management adjustments, possibly many hundreds of them, should be subject to the affirmative or negative resolution procedure? Does she believe that that will be an appropriate use of parliamentary time? If the amendment were carried the effect would be to encourage the central departments to make sweeping, across-the-board delegations to avoid the need to take up parliamentary time on minor matters. That cannot be what the noble Baroness wants. Surely it is better for delegations to be considered carefully and individually tailored to the circumstances of each department and agency.
The implicit worry of the noble Baroness is about the enabling powers under the Bill. I have already tried to explain the limited scope of those enabling powers in terms of the functions which could be delegated. I say to her again that the Bill has nothing to do with contracting out. In that context I find it very odd that noble Lords who usually complain vociferously about government by regulation should now be advocating a vast proliferation of statutory instruments. I cannot believe that the noble Baroness or the noble Earl considers that to be desirable.
There is another, wider point. We should remember that the management of the Civil Service is exercised under the Royal prerogative. The effect of Amendments Nos. 4 and 11 is for Parliament to take a new power to intervene directly in the management of the Civil Service in a way that has never been considered necessary before and to do so in a way that will hamper better management.
1086 The noble Baroness who proposed the amendment made the point that it was important for the Civil Service staff to know how and where delegations had been made, so that they knew who was responsible for determining their terms and conditions. That is a very fair point and one which the Government accept. We have no doubt about the importance of individuals knowing with whom they have to deal on their terms and conditions of service. The central departments will be entirely open about the process of delegation.
The noble Baroness made the point that it was important for Parliament to give its prior approval to any delegations made by the Treasury or the Minister for the Civil Service. While we can have no objection to Parliament taking an interest in the use made of the powers we are now seeking, the Government cannot accept that it is necessary or practicable for Parliament to give its prior approval to any and all delegations. Delegations will be capable of being amended or revoked at any time. Parliament will be able to test the Government on the delegations that they have made and on the conditions that have been attached to them. So Parliament and others will have ample opportunity to make their views known on any delegations and to influence the Government's use of the powers that will be granted by the Bill. The Government accept that Parliament, the unions and others may have a legitimate interest in the delegations that are made by virtue of the powers in the Bill.
In reply to the question asked by the noble Earl, we propose to make that information available at regular intervals by publishing lists of the delegations made. The method by which the Government will do that is a matter for further consideration; but there is no wish on the Government's part other than to be wholly open about what they do. In summary therefore, I hope that the noble Baroness will withdraw the amendment in the light of the assurances that I have given.
§ 5 p.m.
§ Lord McCarthy
The trouble with the Government is that in their attempt not to give us any idea about what they are going to do they caricature the process. Surely it is not a process which is going backwards and forwards. It is not as though the Government will delegate and then draw that delegation back, delegate again and draw it back again. In a concrete case the noble Earl told the House what kind of things would be delegated. He listed some of them again this afternoon. In effect they are one-offs. The Government will give heads of agencies the power to determine grading structure and they will not take it back subsequently. They will give them that power. They will give them the power to introduce performance-related pay, to determine age limits on recruitment, and so on. Those things will not flow backwards and forwards like the tide. There will be one or two occasions when they provide for what those delegations will be in the main agencies.
We on these Benches, through the amendment, seek to know how we are to find out precisely what the Government propose. We suggested that it might be done by the normal procedures of a statutory order. If 1087 the Minister says that that is not right, how is it to be done? At the end of his speech he said that the Government will enable it to be tested. He said that they would publish something to indicate what they were doing. Will that be a regular publication? In what sort of detail will it go into? Shall we know before this Bill has gone through its various stages exactly what the Government propose as an alternative to the proposal of my noble friend?
§ Lord Boyd-Carpenter
The noble Lord overlooks the complexity of the public service. It may well be the case that there will be a considerable number of quite small delegations. If so, solemnly to provide that a statutory instrument will have to be laid and be approved by both Houses would be a very cumbrous way to proceed. Moreover, there is great force in what my noble friend the Minister said; namely, that if that is insisted upon, a considerable temptation is offered to the departments to take much more sweeping powers of delegation in order to be quite sure of not having to come back again and again.
It is also the fact that if one does not have this provision for a statutory instrument Ministers can always anyhow be held to account if they do anything which Members of this Chamber feel is inappropriate. Ministers have to answer Questions in either Chamber. Members of this and of another place will be well aware, particularly perhaps through the trade unions, of any transaction which appears to be excessive or improper in any way. The Minister can be called to the Dispatch Box and forced to answer Questions about it. Therefore, it seems to me not only unnecessary to put this provision into the Bill but also an extremely cumbrous and difficult way to proceed.
Finally, there is the point not touched upon by the noble Lord of the delay that it will cause. For example, if a delegation takes place at this time of year, when there is no time for a statutory instrument to be brought before Parliament until, say, towards the end of October at the earliest, it will delay changes which flexibility may indicate ought to be made and made quickly. To justify such a situation of delay it must be shown that it is necessary to impose this restriction. For my part, having listened to the debate, I do not believe that it is necessary. I hope that my noble friend will continue to reject the amendment.
§ Earl Russell
It may be helpful to the Committee for me to say that on these Benches we entirely accept the noble Earl's answer, which satisfies us.
§ Lord Houghton of Sowerby
Before my noble friend makes further observations, I suggest that the power of a Minister to do as he thinks fit is comparatively rare in our legislation. It is a statutory power—to do as he thinks fit. Clause 1(2) shows how wholesale is that power. It states that he may:to such extent and subject to such conditions as he thinks fit, delegate the function to a servant of the Crown of such description as he may specify".That is an absolute power given to the Minister subject to any challenges—I am not very clear as to what they are—against the misuse of power or where his "thinking fit" may have been without thought or 1088 without fit. There is a challenge in Parliament if one can find the basis for it. I wonder whether the Minister might consider some other form of check on the use of those absolute powers by a Minister. There are the Public Accounts Committee, the Audit Commission and various forms of check upon the use of power. There is not the slightest doubt that constant challenge to the power of Ministers or of bureaucracy is one of the conditions for the survival of our democracy; otherwise one has dictatorship. Many Ministers who believed that they could do as they thought fit would soon be in a dictatorship. We have to beware. We are the guardians of good legislation. Other noble Lords are much better hands at deciding what is good legislation than I am. However, the provision strikes me as being too unusual to pass without question.
During the past 18 years in your Lordships' House I can recall only one other piece of legislation in which such words have been used. I refer to the power given to the Home Secretary under the Dangerous Dogs Act. That was a scandalous piece of legislation. But a provision giving the Minister powers to act "as he thinks fit" without some check upon his action—even if such check is the requirement that he consults, as provided in the Dangerous Dogs Act—should be looked upon with disfavour. I defer to what my noble friend on the Front Bench says, but to allow the legislation to go forward in the terms that the Minister described would be unwise.
One must bear this factor in mind. When seeking enabling powers, the strong urge is to ask for as much as one can attain. I have never heard of any civil servant saying to a Minister, "That is going too far". When seeking enabling powers one grabs what one believes one might need and leaves the legislature to put in the limitations on the use of such power. That is the point of view from which I consider the issue. I hate the words "think fit" in any legislation, especially in the hands of Ministers. After all, they are political animals.
There is a disturbing aspect in this provision. It goes further than increasing the flexibility of administration. The provision gives power to do things which hitherto have required oversight of Ministers' actions. Ministers ought to be prepared to submit to some requirement which enables the watchdogs of Parliament to pick up such actions during the course of their examination.
§ Baroness Turner of Camden
I thank the Minister for his response to the amendment. It was originally intended as a probing amendment to find out what means there would be for scrutinising the way in which the legislation was being applied. I am grateful for his assurance that it is intended to make available information on delegations through lists. That is extremely useful.
I accept that provisions via statutory instrument are not perfect. However, far more complicated questions have sometimes formed the basis for such procedures. Such procedure is sometimes quicker than having to rely simply on Parliamentary Questions. In view of the statement that the Minister made, I shall withdraw the amendment at this stage. We may wish to come back at Report stage to consider whether we 1089 can have the provision in the Bill to which the Minister made reference. That would allay some of the fears that have been expressed to us. On that basis, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 5.15 p.m.
Earl Russell moved Amendment No. 5:
Page 1, line 12, at end insert ("and may at any time revoke that delegation").
§ The noble Earl said: The amendment raises a small but important point as to whether delegation once made can he revoked. The Minister told us that there had been no pilot scheme. He explained carefully and persuasively why that was so. We cannot and should not complain of that. However, since that is the case it necessarily means that whatever is first provided in the Bill will to some extent be of an experimental character. Not every delegation will necessarily be absolutely perfectly judged the first time. No political circumstance is eternal. Therefore, no delegation which is appropriate when introduced will necessarily remain so. The Minister will relieve us considerably if he explains that a delegation once made is not irrevocable and can be revoked when circumstances seem appropriate. I beg to move.
I well understand the noble Earl's point. As he might have expected, I asked my officials to seek appropriate legal advice. I can assure the noble Earl that parliamentary counsel advise that the power of revocation is implicit in the power of delegation. The amendment is therefore unnecessary.
Delegation is to a marked degree different from a transfer of functions order through which the functions once transferred can be taken away only by a further transfer of functions order. Delegation is a much more flexible instrument.
On a more general note, it would create an unhelpful precedent to insert an explicit power on the lines of the amendment. I am not sure that the noble Earl wishes to do so. But if we were to do so it might call into question other statutes in which the power is not made explicit, or it might suggest that there is something novel about the power of delegation in this Bill which requires such explicit provision. In the light of legal opinion, I hope that the noble Earl will agree not to press the amendment.
§ Earl Russell
I thank the Minister for that reply. It was extremely helpful. He said what I hoped to hear. In those circumstances I am happy to beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Baroness Turner of Camden moved Amendment No. 6:
Page 1, line 12, at end insert ("and after consulting those trade unions recognised as representing members of Her Majesty's Home Civil Service in the government department, agency or organisation concerned.").
§ The noble Baroness said: At Second Reading, and again today, great anxiety has been expressed on these Benches at what we regard as a failure to consult the recognised trade unions before the Bill was printed and in advance of Second Reading in this House. I am 1090 grateful to the Minister for the assurances that he has given today. However, it is clear that the Bill is part of an ongoing government strategy in line with the philosophy of so-called decentralisation. That is apparent from the material sent with the Notes on Clauses in which there is reference to the development of the agency system. The Minister has referred to that again today. Clearly the Bill may involve substantial innovations in the way in which the work of some Civil Service departments is carried out. If that were not so, it would scarcely have been necessary to have legislation.
§ As we all know, the Civil Service employs large numbers of people, many with professional qualifications. They are represented by unions which have long been recognised for the purposes of consultation and collective bargaining. There is no gainsaying the fact that the way in which the Government have proceeded with the Bill—they introduced it in the wake of a speech by the Minister which was widely reported, and which gave the clear impression that it was the Government's intention to turn the Civil Service upside down and to create situations in which senior civil servants would have to compete for jobs with people from outside the Civil Service—has led to enormous suspicion on the part of the unions representing people working in the Civil Service. We have been assured today that there will he consultation; that there never was any intention that there should not be. I believe that it would be a good idea to write that into the Bill. The Civil Service is a public service. Generally speaking, I believe that we in this country are well served by it. However, if reforms are necessary it is essential that they should be effected in consultation with, and preferably with the co-operation of, those whose job it is to provide the service. I beg to move.
The Government fully accept that the unions and staff will need to know with whom they are dealing on matters relating to the terms and conditions of the staff whom they represent. Accordingly, the present arrangements for consulting the unions before discretions are given to the departments and agencies will extend also to delegations.
However, we do not believe that it is right to place such arrangements on the face of the Bill. The Bill is about the management of the Civil Service. Surely it is a proper duty for management to decide by whom particular management powers will be exercised. To put a requirement on the face of the Bill that Civil Service unions must be consulted before a delegation of powers can be made would be to give them a statutory role in determining who manages the staff. That is without precedent; no other trade union has been given such a role; nor have the Civil Service unions ever held such a role.
The proper way of dealing with the matter is on the basis of the undertaking that I have given; that the Government accept the need of the Civil Service unions to know when powers are being transferred from one level of management to another and to be 1091 given the opportunity to express any views that they may have both on the delegation and on the conditions that may be attached to it.
They have consistently been given that opportunity in respect of discretions, and continuation of the present arrangements will ensure that that still occurs. I hope that the noble Baroness will accept that assurance and will agree to withdraw the amendment.
§ Lord McCarthy
Did the Minister say that the present arrangements for discretions will be extended to delegations?
§ Lord McCarthy
The Minister has already admitted that the arrangements for consultation on the Bill leave a great deal to be desired. I thought that he also said that he intended to improve them. However, his comments suggest to me that the present arrangements for consulting the unions about discretions, since the Bill is far more important than discretions, leave a great deal to be desired. Will the Minister say that he intends to improve those arrangements too?
As I said in my opening remarks before we went into Committee, we must distinguish three kinds of consultation. The first is consultation about the Bill itself. I have acknowledged that, with hindsight, that could have been done in a way which suited the unions rather better.
Consultation on discretions is a different issue. We have regularly consulted the unions when discretions have been made. I was seeking to say only that the same procedures will continue when and if delegations are made. I hope that that reply clarifies the issue.
§ Baroness Turner of Camden
I thank the Minister for his assurances. I do not intend, to press the amendment but shall read closely in Hansard what he said. I am glad that the Minister has assured the Committee that the Government's policy is to ensure that unions are consulted and that that will be done on delegations as well as on discretions. On the basis of those assurances, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 7 and 8 not moved.]
Earl Russell moved Amendment No. 9:
Page 1, line 18, leave out subsection (4).
§ The noble Earl said: I am mindful of the Committee's time but I hope that I shall be forgiven if I spend a few minutes explaining the amendment. The issue is a little complicated and I should not wish to mislead the Committee. The amendment deals with the Carltona principle; that by which the Minister is accountable for the actions of a junior civil servant of whom he may never have heard. The principle was made famous through Crichel Down.
§ It was perhaps parodied on another occasion by the affair of Jimmy Carter's signature. During the presidential election campaign of 1976 Jimmy Carter was horrified to discover that not all letters from the President were signed or even seen by the President. He rashly promised that he would sign them all 1092 personally. After his election his staff, with great labour and trouble, finally persuaded President Carter that the task would take him precisely 24 hours a day. That is why the Carltona principle is good and necessary.
§ The effect of the Bill is to extend the Carltona principle to acts committed in the name of a person who is not the Minister. Perhaps I may give an obvious example; the head of the benefits agency may commit actions for which the Secretary of State for Social Security is accountable. In that case it is sensible that that should be so. But if, for example, the deputy keeper of the public records should perform actions which concern us, it is not as obvious to me that the noble and learned Lord the Lord Chancellor should be held responsible.
§ There are difficulties about the extension of the Carltona principle in this way. It appears to me that what the Bill is attempting to do is in danger of leading to one or other of two rather unfortunate situations. First, it may make the Minister accountable for actions over which he has no control. No Minister likes that. When Ministers are put in that position they may be expected to make efforts to increase their control over actions for which they fear later to be held accountable. Therefore, we might obtain out of the actual operation of the Bill an extension rather than a decrease of centralisation. That would defeat the Government's objectives and would not he welcome on these Benches.
§ The alternative effect, which I am not sure I should welcome, would be to end accountability to Parliament for the agency function or whatever it might be. There may be cases in which that effect would be necessary. It has been clear for some time that ministerial responsibility covers a wider area than most Ministers are in practice capable of answering for. But that is a large nettle indeed and I believe that it is one that needs grasping by a rather larger and more leisurely prepared Bill than the one now before us. The issue also needs to be discussed by people with the kind of administrative experience to which I can make no claim whatever.
§ I am not opposed to the intentions of the Government's proposal, but I wonder whether the clause requires a little more thought to be given to it before it leaves this Chamber. I beg to move.
As the noble Earl has explained, the effect of the amendment would be to prevent persons, other than Ministers to whom the Carltona principle would still apply, from authorising others to carry out a function which had been delegated to them. In practical terms it would lead to one of three results. The first possible result would be that delegations which would most appropriately be given directly to agency chief executives or to other officials would instead have to be given to departmental Ministers in order that local managers would be able to carry out the functions on the Minister's behalf. The Carltona principle applies to departmental Ministers but not to civil servants.
The second possible result of the amendment would be that delegations would have to be made directly to the lowest operational level at which the function was 1093 to be carried out. For example, a delegation allowing managers to make local arrangements for part-time or home working might need to be made to the manager of each separate office of the benefits agency rather than simply to the agency's chief executive. The third possible result of the amendment would be that agency chief executives would need personally to carry out every management function delegated to them.
The whole thrust of the Bill is to allow central departments to make delegations flexibly: that is, to tailor individual delegations to the needs and capabilities of particular departments and agencies; to ensure that responsibility for management powers is taken at the most appropriate level; and to ensure that the holders of those powers are held directly accountable for their operation.
The amendment would frustrate those aims. It would mean that in some cases responsibilities would be held in the centres of departments when they would more appropriately be exercised by agency chief executives. In other cases responsibilities would need to be given to individual local office managers by the central departments. That in turn would cut across lines of accountability through chief executives or through departmental Ministers. They are lines of accountability which will otherwise be much more effective. In fact, the amendment undermines and frustrates accountability whereas I assume that it aims to safeguard it. In the light of what I have said, I hope that the noble Earl will reconsider the amendment and will not see fit to press it.
§ 5.30 p.m.
§ Lord McCarthy
While the Minister has answered the arguments for the amendment—and I suspect that the noble Earl, Lord Russell, may withdraw it—as far as I can see, he has shown no understanding of the problem which prompted it.
In a way this matter goes back to Amendment No. 4. Once the Minister disappears, unless we know clearly who is responsible for carrying out the function, we know no more about what happens to it. If that individual, whom we do not know, can delegate the function to somebody else, whom we do not know, and that person can then delegate it to someone else, whom we do not know, then there is an infinite process of delegation. That is the problem. We know who are the Ministers and, therefore, under Crichel Down, we can assume that it is their responsibility; but we do not know who those persons are. Perhaps on Report the Minister will get to the heart of the problem which lies behind the amendment.
§ Earl Russell
I thank the noble Earl for his reply. He has explained extremely clearly why I would never have dreamt of pressing the amendment. However, there is an underlying problem here; namely, what effect the Bill will have on accountability to Parliament.
I do not know what the Government should do in that regard, but before the Bill leaves us I should be grateful if we could know a little more about what they are doing and what will be the effect of the Bill on accountability if the matter is left as it stands.
I need clarification from the noble Earl as to what he is asking me. If he is asking me how accountability will manifest itself once the Bill becomes law, I should say to him, as I said earlier, that lists of the delegations will be published. That will put all delegations into the public domain. It will be possible for Ministers to answer to Parliament about those delegations and the way in which they have been handled.
On the other hand, if the noble Earl is asking how accountability will manifest itself if the Bill does not become law, I am not sure that I have a ready answer. So far accountability extends only to the Treasury and the Minister for the Civil Service. In general terms delegations have not been made because the Bill has not been made law. The most that we have are discretions. Therefore, as I understand it, the Treasury and the Minister for the Civil Service are accountable to Parliament.
§ Earl Russell
I am concerned about the effect of accountability when functions are delegated to an agency. Accountability as regards agencies is something which we have not yet got right. Functions are delegated to somebody over whom the Minister has no control but if the Minister is still accountable for those functions he is in something of a dilemma. However, if the Minister is not held accountable because he does not control the person, then Parliament is not able to hold anybody to account for those functions. There is a difficulty here, but I do not know what we should do about it.
I now understand the noble Earl's question. Of course, the Minister will be answerable to Parliament on the delegations that he has made. If it turns out to have been misplaced in some way, the Minister will have to answer to Parliament for that.
The noble Earl assumes that the delegation will be complete, without strings or conditions attached. In the early days when the Bill becomes law that may not happen. Very strict conditions may be attached to a delegation; for example, a delegation may be time-limited or limited to a person rather than the holder of an office. In a real sense there will be accountability right up to the Minister, if it is a Minister, who has delegated. I hope that I can perhaps clarify what I have said at a later stage or by writing to the noble Earl. However, he has raised a useful point which we shall wish to pursue.
§ Baroness Seear
Before the noble Earl sits down, I am not happy about this. As I understand it, the whole point of delegation is that more power to make decisions is being passed to the person to whom the delegation is given. Is there not a real problem about accountability to Parliament at the end of the day? If the person to whom the function is delegated does something discreditable or wrong, will the Minister still be answerable in the way that he was in regard to Crichel Down? If that is the case the Minister has responsibility without authority, because he has delegated that authority. I should not like to be the Minister—not that I ever shall be—who has delegated authority but who, in reality, has no hope of 1095 controlling what the person is doing to whom he has delegated the function. If the Minister is not answerable, all parliamentary control has gone.
We have all heard of cases where the chairman or chief executive of a public company has resigned because of the actions of one of his subordinates, actions which he may have known nothing about.
I make this distinction. Delegation is entirely different from abrogation. Delegation implies that you still retain accountability in the sense that you are answerable for the delegation that you have made and you are ultimately answerable for the actions of your subordinates.
§ Earl Russell
I thank the Minister for the trouble he has taken with this. I am not convinced that he is right and I am not convinced that I am right. I am grateful for his assurance that he will think further about this matter and I shall try to do the same. We may have to return to this matter but, meanwhile, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 10 and 11 not moved.]
§ Clause 1 agreed to.
§ Clause 2 [Power to authorise exercise of functions without approval etc.]
§ [Amendments Nos. 12 and 13 not moved.]
§ Clause 2 agreed to.
§ Clause 3 [Corresponding Northern Ireland legislation: parliamentary procedure]:
§ On Question, Whether Clause 3 shall stand part of the Bill?
§ Baroness Turner of Camden
I gave notice to oppose the Motion that Clause 3 stand part of the Bill because I should like to ascertain a little more from the Government about what they have in mind.
There are some questions which I should like to put to the Minister before I decide whether or not to proceed with my opposition. For example, if Clause 3 remains in the Bill, will the remit of the Parliamentary Commissioner for Administration extend to the organisations headed by a servant of the Crown? Secondly, for the purposes of Article 3(a) of the Fair Employment (Specification of Public Authorities) (Northern Ireland) Order 1989, will organisations headed by servants of the Crown be regarded as public authorities in that context?
Those are issues which I understand relate quite specifically to Northern Ireland and I should be grateful for a response from the Minister.
The purpose of Clause 3 is to simplify the procedure required to keep the provisions in respect of the Northern Ireland Civil Service in line with those for the home Civil Service. It will avoid the necessity for a repetition of the proceedings on this Bill on a separate Northern Ireland Order in Council. The first point to note is that the clause restricts the scope of a Northern Ireland order dealing with Civil Service management functions to measures which correspond directly with Clauses 1 and 2 of the Bill. Like those clauses the Northern Ireland order which would be 1096 made under Clause 3 would be of an enabling nature only. The Government see no distinct issues in respect of the Northern Ireland Civil Service on the substance of the Bill which would justify separate debate. On that basis the negative resolution procedure is entirely appropriate.
The noble Baroness asks what the effect would be if Clause 3 were not in the Bill. My understanding is that home civil servants who happened to be working in Northern Ireland would be covered by Clauses 1 and 2. The Northern Ireland civil servants, if they were to be brought within the scope of the Bill, would require affirmative resolutions through Parliament.
With regard to the noble Baroness's second question, I shall, if she will forgive me write to her. I hope that the noble Baroness is not unhappy about the scope of the Bill extending to the Northern Ireland Civil Service, which is central to the clause.
§ Baroness Turner of Camden
I thank the Minister for his response and shall await with interest his letter in regard to my second question. I am grateful to him also for what he said. At the beginning I said that my Motion was simply to enable me to ask some questions. It is not my intention to proceed with it. I therefore beg leave to withdraw the Motion.
Clause 3 agreed to.
Clause 4 agreed to.
House resumed: Bill reported without amendment.