HL Deb 22 October 1992 vol 539 cc853-9

3.42 p.m.

Report received.

Clause 1 [Delegation of Functions]:

[Amendment No.1 not moved]

The Parliamentary Secretary, Ministry of Agriculture, Fisheries and Food (Earl Howe) moved Amendment No.2:

Page 1, line 11, leave out from ("to") to end of line 12 and insert ("any other servant of the Crown.").

The noble Earl said: My Lords, this amendment stands in my name and the names of the noble Lord, Lord Cledwyn of Penrhos, the noble Baroness, Lady Turner of Camden, and the noble Earl, Lord Russell. It may be helpful if I take this amendment together with Amendment No.3, which I am sure is intended to have the same effect.

The purpose of the amendment is quite simple. It is intended to allay the fears that were expressed in Committee by the noble Lord, Lord Cledwyn, and the noble Earl, Lord Russell, who felt that the present drafting of Clause 1(2) was ambiguous. Specifically, they considered that the subsection offered Ministers the power to delegate the powers they exercise over the management of the Civil Service to anyone they liked. In support of those concerns, it has been argued that the subsection would allow Ministers to designate anyone as a servant of the Crown and then delegate powers to him; or that the subsection was circular in so far as anyone to whom powers were delegated would by definition become a servant of the Crown.

When this matter was raised in Committee I said that it was my firm view that the subsection was not in fact circular but that I was willing to agree to look at the matter again. As part of that process, my officials have sought further legal advice. That advice has reaffirmed the view that the subsection cannot carry the construction that noble Lords opposite have placed upon it.

Nonetheless, I accept that the present drafting leaves room for honest differences of interpretation, and that some legal experts whom the noble Earl, Lord Russell, has consulted support the alternative reading of the subsection. I think it would be most unfortunate to maintain an entrenched position over the drafting when the Government have never had any intention of using this Bill to delegate the determination of the terms and conditions of civil servants to people who are not Crown servants. My officials have therefore discussed this amendment with the representatives of the Civil Service trade unions, and I and the noble Earl, Lord Russell, have corresponded about it. I thus find myself in the happy position of being able to propose this amendment in the company of other noble Lords opposite.

The noble Earl, Lord Russell, has proposed an alternative formulation in Amendment No.3. If he will forgive me, it seems to me that his amendment is intended to have the same effect as Amendment No.2 but may not achieve the same unambiguous result, depending on how one reads it. That is of course a drafting detail. More importantly, I hope that the noble Earl will feel that Amendment No.2 offers a simpler route to the destination that we are all seeking, and that on that basis he will withdraw his Amendment No.3.

I believe that the proposed Amendment No.2 offers a simple and elegant solution to the worries that have been expressed and removes all possible ambiguity over the power afforded to Ministers to delegate yet retains the flexibility offered by the phrase "servant of the Crown". I beg to move.

Baroness Turner of Camden

My Lords, I thank the Minister for introducing an amendment which certainly improves matters and goes a good way to meeting the promises made at Committee stage. We on our side will argue that on its own we should like it to go a little further than that. That is why Amendment No.5 is before the House. I shall speak to that amendment later. However, in regard to this amendment we are very glad to confirm our acceptance of it since in the event it is the same as the one which we ourselves originally tabled.

Earl Russell

My Lords, I thank the Minister very warmly for the courtesy and care that he has devoted to correspondence on this matter during the Recess and for taking seriously a misgiving which he himself did not share about the interpretation of the clause. I have no idea which of us was right. The amount of case law on the matter is not sufficient for any of us to be sure about it. But the wording now proposed is satisfactory. I welcome it and assure the Minister that I do not intend to move Amendment No.3.

On Question, amendment agreed to.

[Amendment No.3 not moved.]

Earl Russell moved Amendment No.4:

Page 1, line 12, at end insert: ("( ) Notwithstanding subsection (2) above, no Minister of the Crown may delegate any function to which this section applies to an Officer of Her Majesty's Armed Forces without the prior approval of Parliament.").

The noble Earl said: My Lords, I put forward this amendment in a very tentative and exploratory spirit. Again it arises from the phrase "a servant of the Crown". In Committee the noble Earl explained that it covers civil servants, members of the diplomatic service, members of the armed services, members of the Forestry Commission and a few other specified individuals.

In certain circumstances powers are and should be delegated to members of the armed services. The Minister gave the example of the head of the National Hydrographic Survey who at present is, I understand, an admiral. That seems to me to be thoroughly appropriate. There is no disagreement whatever between us so far as I can see on what the Government at present intend to do.

On the other hand, we legislate for future generations. On occasion we legislate for future centuries. As it stands, the Bill authorises the delegation of management functions to members of the armed services in any circumstances whatever. I appreciate that there is a limiting force in the words "management functions". I look forward to what the Minister will say on the strength of that limitation.

However, I still wonder, and some members of the armed services may also wonder, whether this provision is perhaps a little sweeping and whether for the sake of future generations we might think of some rather more tight limitation. I am not sure whether the limitation that I propose is the right one or whether indeed it is technically feasible. I should very much like to hear the Minister's thoughts on this subject. I beg to move.

Baroness Turner of Camden

My Lords, my name is not attached to the amendment but it seems to me that there is some merit in it. I should not have thought that it would he so difficult to obtain the prior approval of Parliament before arrangements were made to delegate to members of the armed services. That is what I believe to be the intention of the amendment.

I do not know whether the noble Earl will want to press the amendment this afternoon but I too would like to hear what the Minister has to say about it. The amendment as worded provides an additional safeguard of possible parliamentary scrutiny. From that point of view, I believe that the amendment has merit.

Lord Boyd-Carpenter

My Lords, I do not at all like the amendment. It appears to discriminate against members of Her Majesty's forces. No justification has been brought forward for so doing.

There is also a question of drafting. As I read the amendment, the limitation applies only to delegation to officers of Her Majesty's forces. Apparently it would not operate in respect of other ranks.

Earl Howe

My Lords, I am grateful to the noble Earl, Lord Russell, for having written to inform me that this was a matter of some concern to him. The noble and gallant Lord, Lord Carver, who I understand is unable to be present today, has also written to me on this question.

I have to say, as I said in my written reply to the noble Earl, that I do not see a real danger here. That belief is based on the fact that the Bill is of very narrow scope. It seems to me that I can allay the concerns expressed by the noble Earl if I can demonstrate why the scope of the Bill is so narrow, and, specifically, if I can reassure him as to precisely what is meant by the management of the home Civil Service. I believe that I can do so.

The powers about which we speak when we refer to management functions are essentially powers to determine the terms and conditions of service of civil servants. I refer to such factors as pay, allowances, hours of work and so on. Furthermore, this part of the Bill relates only to the management of home civil servants and to a narrow range of powers which have at some time been the subject of Transfer of Functions Orders and which, for that very reason, cannot at present be delegated. Those functions can be found in the Minister for the Civil Service Orders 1968 and 1971 and the Transfer of Functions (Minister for the Civil Service and Treasury) Orders 1981,1987 and 1991. Any future TFOs transferring these powers between the Treasury and the Minister for the Civil Service will also fall within the scope of the Bill. But again those will relate only to that narrow range of powers originally subject to the Royal prerogative which have been delegated to the Treasury through Orders in Council.

Those are clear and real constraints. The Bill therefore cannot be used as a vehicle to enable Ministers to transfer other powers from civil departments to the military. Still less is it a possible instrument for the introduction of a military government.

Members of the Armed Forces already exercise as chief executives of a number of Ministry of Defence agencies management responsibilities for members of the Civil Service. The Bill simply offers more of the same. Its effect will be to allow the central departments to delegate fully to such service personnel Civil Service management functions which they currently exercise within discretions. In other words, the Bill does not and cannot create any extraordinary precedent or major constitutional departure.

If there were to be any scope for the transfer of major government functions to the Armed Forces, I should be the first to agree that parliamentary scrutiny was essential. But, given that service personnel are already managing civil servants in appropriate areas, I do not feel that an amendment could be justified which requires separate parliamentary sanction before delegating these limited powers. Such members of the armed services are holding positions to all intents and purposes identical to those of their Civil Service counterparts.

All else apart, this would raise the spectre that if a civil servant agency chief executive were to be succeeded in the same post by a military officer, Ministers would need to return to Parliament to sanction the delegation which might already be in existence; and that cannot surely be necessary. I hope that on that basis the noble Earl will be content not to press his amendment.

Earl Russell

My Lords, I thank the noble Lord, Lord Boyd-Carpenter, for drawing attention to the drafting defect in the amendment. The point is well taken. I assure him that there was no intention whatever of discriminating against members of the armed services except only in so far as their skill is necessarily to some extent different from that of members of the home Civil Service. In the cases to which the Minister referred, where their skills are appropriate to the task in hand, the position appears to be entirely suitable. I had discussions before tabling the amendment. If I had had any reason to believe that the amendment might be mistaken I would not have tabled it. I hope that the noble Lord, Lord Boyd-Carpenter, will accept that assurance.

I listened with great care to the Minister. His key point relates to appropriate functions. I considered long and hard about whether I could draft an amendment which defines appropriate functions. I certainly cannot; I do not know the Government's mind well enough. I believe that the Minister himself would face quite severe technical difficulties in so doing. I feel a great deal of sympathy with that; I should not like to have to find a way through.

I found reassuring the points made by the noble Earl about limitation of management functions and the limitation of the purposes of the Bill. I am grateful to him for making them. I am grateful to him for correspondence on this matter. The answer is satisfactory so far as the nature of the matter permits. I am happy to beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Baroness Turner of Camden moved Amendment No.5:

Page 1, line 17, at end insert: ("( )When exercising the power conferred by subsection (2) above a Minister of the Crown shall identify the person to whom the delegation is made, and, in particular, shall do so by reference to the position which that person occupies in the service of the Crown.").

The noble Baroness said: My Lords, the amendment attempts to tie down what has already been agreed by the House in Amendment No.2. Your Lordships will recall the furore that arose when the Bill came before the House at Second Reading. It appeared in the wake of statements by the Secretary of State, made elsewhere and widely reported, that the Government were about to embark upon wholesale privatisation of the Civil Service. There had been no prior consultation with the unions and, naturally, there was enormous concern.

We were advised by the Minister that there had been a total misunderstanding: that this was a technical Bill which could not be used as a vehicle for wholesale privatisation. We complained about the lack of consultation. I understand that there has now been consultation with the unions concerned. I am grateful to the Minister for that and for the assurances that he has given today.

Nevertheless some suspicions remain. The amendment before the House today is intended to ensure that when the Minister of the Crown makes the delegation he identifies the person to whom the delegation is made by reference to the position which the person occupies in the service of the Crown. I believe that the Minister may well tell the House that that is unnecessary and that it is implicit in the first amendment which has been adopted and in the meaning of the word "delegation" that the Minister must specify the person to whom delegation is made.

However, we do not see why that should not be made more specific in the legislation. As I said, the Bill has aroused an enormous amount of suspicion, largely due to the way in which it was originally handled by the Government. We have now accepted the assurance that the Bill is not a blueprint for wholesale privatisation, as we originally had suspected, and that it is not intended to use it except to ensure delegation of management functions actually within the service. Therefore, why not make that absolutely clear and allay the suspicions altogether? I beg to move.

Earl Howe

My Lords, the noble Baroness has explained clearly the intentions behind the amendment. However, I fear that it is not an amendment the Government feel able to accept. That is not because we do not wish the Bill to operate much in the way that the noble Baroness has suggested; it is because the amendment is neither necessary nor helpful. As I explained when proposing Amendment No.2, the drafting of Clause 1(2) was referred for further legal advice in the light of the objections made to the phrase, of such description as he may specify". The subsection as it stood was drafted in such a way as to make it clear that the maker of the delegation could identify the servant of the Crown to whom the delegation was to be made—for example, a chief executive or a Minister—by the title of his or her office. The resultant drafting of this subsection, of course, then created concern among some noble Lords that the result was something other than that which we had intended.

The view of our legal advisers is that, on reflection, Amendment No.2 is sufficient to render such a requirement redundant. They have pointed out that it is clear that a Minister exercising the power of delegation in subsection (2), as amended, must by definition specify the person to whom it is made. No Minister could or would say, for example,"I delegate the making of arrangements for probation in the Civil Service", and then stop short. He would have failed to have delegated, as required in the amended subsection (2), to anyone. That would be abrogation and not delegation. Nor could he say,"I delegate the power to determine working hours to any civil servant". No-one would know for what they were responsible.

By remaining silent on the question of specification the Bill offers Ministers the alternatives of identifying a recipient of a delegation directly (that is by name); or indirectly by specifying a description which only he fits such as the "Chief Executive of the Benefits Agency". Both of those methods of identification are clear and straightforward and can create no doubt as to where the delegation has gone.

By contrast, this amendment lays a duty upon the Minister making the delegation to identify the recipient only indirectly by a description of the position which that person holds in the service of the Crown. I am not sure that I see the advantage which is thereby gained. Although I do not disagree that in most cases it will be more helpful to identify a recipient in this way, rather than by name, there may perhaps be circumstances in which a delegation might ideally be made a named Crown servant who has a particular and temporary duty to perform. This amendment as drafted would prevent such an approach.

I hope, therefore, that the noble Baroness will agree that it is not sensible to introduce a further subsection covering matters which are, I am firmly persuaded, already adequately covered in the Bill and that she will agree to withdraw the amendment.

Baroness Turner of Camden

My Lords, I thank the Minister for that full explanation. I am glad to hear that the intention behind the amendment is accepted by the Government, even though they cannot accept the way in which we have gone about it. In those circumstances, I beg leave to withdraw the amendment. I shall look carefully at what the Minister said, which has been helpful, and I thank him.

Amendment, by leave, withdrawn.

Viscount Goschen

My Lords, I beg to move that the House do now adjourn during pleasure until 4.20 p.m.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 4.3 to 4.20 p.m.]