Lords Sitting of 5 March 2004

Preamble
The House met at eleven of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Rochester.

Executive Powers and Civil Service Bill [H.L.]
11.5 a.m.
Lord Grocott: My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Executive Powers and Civil Service Bill, has consented to place Her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament, for the purposes of the Bill.
Lord Lester of Herne Hill: My Lords, I beg to move that this Bill be now read a second time. It is a constitutional measure creating a framework for better parliamentary scrutiny of the executive. Its first purpose is to place under parliamentary authority the executive powers exercised by Ministers by virtue of the Royal prerogative, including treaty-making. Secondly, it puts on a statutory footing the basic principles upon which the Civil Service is based and the ground rules governing the relationships between Ministers, civil servants, special advisers and Parliament. Thirdly, it establishes a procedure for the approval of some key public appointments.
Even though I have done it before in my two Human Rights Bills, it is unusual for a constitutional measure to be introduced as a Private Member's Bill. But such a Bill should have been introduced by the present Government several years ago. I look forward to learning from the Minister whether the Government intend at last to introduce a draft Civil Service Bill during the next few months and whether they support new machinery for the parliamentary scrutiny of treaty-making and for making key public appointments. The Minister's response—and I have written to him in advance on the issue—will enable me to decide whether to take the Bill through all its stages in this House if it is read a second time.
The ideas reflected in the Bill are not original. In 1854 the Northcote-Trevelyan report on the Organisation of the Permanent Civil Service recommended that the key principles and structures governing the Civil Service be enshrined in statute. The Bill gives effect in broad terms to recommendations made by the Committee on Standards in Public Life, Defining the Boundaries within the Executive: Ministers, Special Advisers and the permanent Civil Service, in its ninth report of April 2003. Sir Nigel Wicks who chaired that committee—my noble friend Lord Goodhart was a member of it—has said that the introduction of legislation to regulate the relationships between Ministers, civil servants, special
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advisers and Parliament could help to restore some of the public trust in central government and public office holders that has been lost in recent years.
I warmly welcome the recent publication by the Commons Public Administration Select Committee chaired by Dr Tony Wright MP of a draft Civil Service Bill. My Bill goes further, but both initiatives have the same common purpose of persuading the Government to introduce legislation worthy of the name. Dr Wright's Bill has been introduced in the other place and may have its Second Reading debate today. The Public Administration Select Committee is currently preparing a report on Parliament and the prerogative. That report is likely to be published within the next couple of weeks with another draft Bill. Obviously, that will be a very important initiative indeed. I hope that it may persuade the Government to be more ambitious. Rather than produce a narrow minimalist draft Civil Service Bill—although that would be better than nothing—I hope the Government will deal with the wider issues about prerogative powers that will be addressed by the Public Administration Select Committee. If necessary, and if the Bill is given a Second Reading, I shall seek to amend my Bill in the light of that committee's two reports and draft Bills.
We were all brought up to believe that there were two fundamental principles protected by our unwritten constitution: one was parliamentary supremacy, that the executive was accountable to Parliament rather than to the Sovereign; and, secondly, the principle of the rule of law, that public powers should be exercised according to the law of the land. The difficulty about our elastic and flexible unwritten constitution, with all its advantages, is to make sure that those principles apply in practice.
Should it be Parliament that is sovereign, to whom the executive is constitutionally accountable, or should it be the monarch? The view on which the Bill is based is that in our modern democratic society it should be Parliament, while preserving intact the personal prerogatives and immunities of the sovereign, like any other constitutional head of state.
Prerogative powers are a necessary incident of government. But it is surely anomalous that the Crown is able, on the basis of medieval notions of kingship, through the Queen's Ministers, to exercise public powers without parliamentary authority. It is time that Ministers and civil servants, in conducting Her Majesty's Government, do so under parliamentary authority. That is not a radical or republican view. The symbolic role of the monarch is unaffected, as are the sovereign's personal prerogatives. But public powers should be exercised with parliamentary rather than monarchical authority.
We also need better parliamentary scrutiny of treaty-making and of war powers. Treaties reach into every nook and cranny of our lives. It is anomalous that Parliament has almost no role in the process of ratification of important treaties and it is done entirely under the prerogative. In the European Union in relation to legislation there is scrutiny but there is no equivalent scrutiny for treaties generally, as—for example—the commission of the noble Lord, Lord Wakeham, pointed out in its proposals for Lords reform. I am delighted that the noble Lord will be taking part in this debate.

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This part of the Bill could be implemented without legislation if the Government were willing to give urgent and strong support for the recommendations made by the Wakeham commission. That support has so far not been forthcoming.
On war powers, it is entirely anomalous that there is no principle that parliamentary authority must be sought before we wage war, except in situations of grave emergencies, so grave that there is no time to consult Parliament. As regards appointments to public office, it seems entirely anomalous that appointments to key offices such as the Parliamentary Commissioner for Administration, the First Civil Service Commissioner—I am delighted that she will be taking part in this debate—and the chairs of the equality commissions are made by Ministers without any parliamentary advice or consent.
Clause 1 defines the executive powers that are to be placed under the authority of Parliament, but excludes rights and powers that belong to the Queen personally or to any other member of the Royal Family. The symbolic official functions of the Queen, such as summoning, prorogation and dissolution of Parliament and the giving of Royal Assent to Bills, will not be affected.
Clause 3 enables Parliament to approve treaties before they are ratified and to secure parliamentary approval before members of the Armed Forces are sent into combat. Clause 4 establishes a committee of both Houses to review the circumstances in which executive powers are exercised. It needs to be read with Schedule 1. Part 2 creates a statutory framework for the Civil Service structure in England, Wales and Scotland. During the 150 years since Northcote-Trevelyan, many have pressed for a coherent, statutory framework governing the functions of Ministers, civil servants and special advisers. I shall recall just a few recent examples.
In 1995, the first report of the Committee on Standards in Public Life was published under the chairmanship of the noble and learned Lord, Lord Nolan. By that stage, the Major Government had begun a process of consultation on whether the Civil Service should no longer be regulated under the prerogative, but under statute. The Nolan committee saw merit in the idea of a statutorily based Civil Service. I have included references in my speaking notes to where one finds these quotations, and they could conveniently be included in Hansard if the Editor thought that was useful for the House. I shall not weary the House by citing all the references now.
Shortly before the 1997 election, the Labour and Liberal Democrat parties set up a Joint Consultative Committee on Constitutional Reform, on which my noble friend Lord McNally and I served, together with my noble friend Lord Maclennan of Rogart. Both noble Lords are taking part in this debate. Our joint report identified common ground between the parties and said that:
"Both parties agree that there should be a Civil Service Act to give legal force to the Code, which should be tightened up to underline the political neutrality of the Civil Service. It should also be reviewed in relation to other public authorities, to clarify lines of Civil Service and ministerial accountability and responsibility".
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The sixth report of the Committee on Standards in Public Life, under the chairmanship of the noble Lord, Lord Neill of Bladen, concluded:
"A timetable for the introduction of the Government's commitment to a Civil Service Act should be produced as soon as possible. In particular, a target date should be set for the consultation on the scope of such an Act".
Other countries with similar systems, including Australia, New Zealand, Canada, and Ireland have legislated to put their public service structures and values on a statutory footing, recognising that,
"as one of the great institutions of state, the Civil Service needs to be insulated against the vagaries and caprice of party faction, fad or prejudice".
In April 2003, the ninth report of the Committee on Standards in Public Life, chaired by Sir Nigel Wicks, recommended that:
"The Civil Service should be established in statute",
and that,
"There should be a short Act to cover the Civil Service and special advisers".
In 2000, the Wicks Committee noted that the debate surrounding the need for a Civil Service Act had,
"acquired fresh importance because of the radical reform of the Civil Service that this Government is pursuing".
There have been concerns about the increasing numbers and the intrusive role of special advisers leading to the politicisation of the Civil Service. In May 2002, my noble friend Lord Holme of Cheltenham—who is also taking part in this debate—called attention to the case for a Civil Service Act, clarifying the respective responsibilities of Ministers, political advisers and civil servants. Former Cabinet Secretaries—one of whom is taking part in this debate—and special advisers lent the collective breadth of their experience to a lively and authoritative debate.
Many noble Lords commented on the timeliness of the debate. The noble Lord, Lord Butler of Brockwell, who has expressed regret for his inability to be present today—had he been, he would have spoken supportively—said:
"Why then, when a non-political Civil Service has survived for almost 150 years on the basis of the Royal Prerogative and the Civil Service Order in Council, is legislation now needed to provide for it? In my view, the reason does not lie in the ill intentions of either this or any other government. It lies in the changing context in which government is conducted. This has introduced requirements which have become, I think, dangerous to the concept of a non-political Civil Service—[Official Report. 1/5/02; col. 698.]
The noble Baroness, Lady Prashar will enrich this debate with her authoritative contribution. I hope that she will forgive me for quoting her now. She said:
"By enshrining in statute the core values of appointment by merit after fair and open competition, and by incorporating in statute the responsibilities and powers of the Civil Service Commissioners, including the obligation to report on their work, we would place the constitutional position of the Civil Service more directly under the oversight of Parliament".—[Official Report, 1/5/02; col. 704.]
The evidence revealed during the inquiry carried out by the noble and learned Lord, Lord Hutton, about the workings of the Civil Service gave rise to widespread

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public concern about the current position. The annual report of the Wicks committee, published in February 2004, noted that,
"a number of the issues that were raised during Lord Hutton's inquiry were presaged, in a general way, in the recommendations made in our Ninth report … including: clarity, and parliamentary approval through a Civil Service Act, of the appropriate boundaries between Ministers, Special Advisers and Civil Servants; a clear statement of what Special Advisers cannot do set out in primary legislation; and the need for powers to be given to the Civil Service Commissioners to investigate, on their own initiative, concerns raised about possible breaches of the Civil Service Code".
The committee expressed its belief that:
"The Government's response represents a seriously missed opportunity to bring the necessary clarity about the proper boundaries within the executive; to ensure the right degree of security about their maintenance; and through this, to enhance public trust in the processes of government".
On 4 February, the debate on the Hutton inquiry spurred further calls for a Civil Service Act. For example, my noble friend Lord McNally said:
"The lessons from Hutton are very clear. Never again should a political appointee, and especially the Government's political propaganda chief, be so closely involved in the workings of our secret services. The role and powers given to Alastair Campbell when the Government came into power in 1997 were fraught with dangers for the political neutrality of the Civil Service and the integrity of the information services. There is an urgent need for a Civil Service Act to underpin the Northcote-Trevelyan principles of a politically neutral Civil Service promoted on merit.— [Official Report, 4/2/04; col. 778.]
I hope that it is clear from the above that the time is over-ripe to put the Civil Service on to a statutory footing so that we can have a politically neutral Civil Service, appointed on merit, without political interference or control by politically partisan special advisers.
I declare an interest as a former special adviser to Roy Jenkins at the Home Office. At that time, 30 years ago, the Civil Service was robustly impartial and politically neutral. Often, if I may say so, civil servants stood up to Roy Jenkins, junior Ministers and me—thank heavens that they did, as they prevented us making some of the crass mistakes of which I personally might otherwise have been guilty. In recent years, concerns have been expressed that there has been an erosion of the impartiality of the Civil Service, especially under the administration of the noble Baroness, Lady Thatcher, and the present Government. Some have argued that the best reform would be fully and openly to politicise the Civil Service. I do not agree with that course. I continue to believe that, under our system of government, a politically neutral, impartial Civil Service appointed on merit and exercising executive power is a constitutional necessity. It promotes rather than undermines good governance. That is why legislation really matters.
Part 2 creates a framework for the Civil Service structure in England, Wales and Scotland. Wicks recommended that the Civil Service Commissioners should continue to be responsible for ensuring that the merit principle is properly applied and that the commissioners should be granted powers and facilities to investigate, on their own initiative, and to report on the operation of the Civil Service recruitment system as it concerns the application of the principle of selection on merit. That is exactly what the Bill does.
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Under Clause 6, selection to the Civil Service must be by merit on the basis of fair and open competition, except where it is otherwise expressly provided for in the Act. Clauses 7 and 8 set up the Civil Service Commission and outline its duties. Clauses 15 and 16 and Schedule 3 grant powers to the commissioners to enable them to investigate and report. Wicks recommended that a Civil Service Act should include a statutory obligation on Ministers to uphold the impartiality of the Civil Service. Clause 10 does that by making it the duty of each Minister of the Crown to uphold the integrity and impartiality of the Civil Service and to uphold the independence and impartiality of the Civil Service Commission. That is similar to the obligations included in the Constitutional Reform Bill, which we shall debate on Monday, in relation to judicial independence. It is likely to be of greater practical importance as applied to civil servants than to judges.
Clause 13 provides that the Minister for the Civil Service shall issue codes of conduct for civil servants and for special advisers to set out the constitutional framework within which they work and the values that they are expected to uphold. The draft code must be published and representations sought from the Civil Service Commission. The draft code must then be laid before both Houses of Parliament.
The important office of Commissioner for Public Appointments was established in December 1995 as a direct result of a recommendation in the first report of the Nolan committee. The commissioner, currently Dame Rennie Fritchie, is appointed by the Queen under the Public Appointments Order in Council 2002. Clause 19 puts the office of Commissioner for Public Appointments on a statutory footing.
Special advisers are currently appointed by Ministers to the Civil Service under powers conferred by the Civil Service Order in Council 1995 as amended. The number of special advisers did not vary much for 20 years from Harold Wilson's time as Prime Minister, and at the beginning of 1997 there were 38 in government. But the number in December 1999 stood at 74. The Civil Service Order in Council 1995 was amended in 1997 to give up to three special advisers, all at No. 10, executive powers over civil servants. On 9 February 2004, the noble Lord, Lord Bassam of Brighton, provided helpfully an up-to-date list of special advisers, which revealed that there are currently 73 special advisers, no fewer than 27 of whom are assigned to the Prime Minister. I believe that no special adviser should be able to exercise executive powers over civil servants, and look forward to the Minister's response on this point. The Bill goes further than the Wicks report in this respect, because Wicks accepted that the existence of two posts with executive powers within the office of the Prime Minister should be recognised in statute.
Clause 11 provides that no special adviser, as defined in Clause 5, may exercise executive powers. Each special adviser will be under a duty not only to uphold the integrity and impartiality of the Civil Service but also to act at all times with honesty and integrity. In particular, they will not have the powers

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to authorise any spending of government money, to be able to instruct civil servants or to have any role in the line management of civil servants.
Clause 12 requires an annual report on the appointment, role and responsibilities of special advisers. No doubt, the Bill can be improved, notably by including the provisions in the Wright committee's draft Bill removing nationality restrictions on access to the Civil Service. We left that out; it is a gap that needs to be filled. But I hope that the main principles upon which the Bill is based will find support across the House, strengthened as it is today by many noble Lords with former ministerial experience, and that the Government will either support the Bill or introduce a draft Bill of their own that is worthy of the issues that we have raised. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Lester of Herne Hill.)
11.29 a.m.
Lord Sheldon: My Lords, I congratulate the noble Lord, Lord Lester, on bringing forward this Bill. It should have been introduced by the Government. It is quite disgraceful that, year after year, there is pressure from both Houses and Bills are put forward in both Houses, but the Government have not yet taken action. That is a great omission that obviously needs to be emphasised in the light of what the noble Lord, Lord Lester, has said today. It has obviously been a time-consuming task for him. However much assistance he may have had, it has been a great burden that has fallen on him. We should recognise and value the work that he has done.
I should also like to record my appreciation for Tony Wright, the honourable Member for Cannock Chase, and the Public Administration Committee. I was chairman of the Liaison Committee while he laboured in his committee. I am fully aware of his work and dedication which made that committee one of the successes of our parliamentary process. He has shown what can be achieved within the Select Committee system.
On looking at the Civil Service, the concept of service has always been an important strength from which we have all benefited. Even in these more cynical times there are still many who believe that the opportunity to take a part in the defence of our country or to play a part in its achievements is one of the noblest of aims.
In the early post-war years that was particularly true. There were men and women who had served their country and looked to the planning of the post-war society in which they would bring their strengths to the service of their country. That idealism resulted in much of the ensuing work of recovery and restoration in our country in the post-war years.
The background to all of that was the consequence of the great Northcote-Trevelyan reforms, quite rightly referred to by the noble Lord, Lord Lester. In their momentous report, they condemned the incompetence,
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the nepotism and other defects as they then existed, and showed how merit could be recruited in the interests of our country.
The reforms that followed were the foundations of our administration and produced the professional non-party-political Civil Service that we have had the privilege to enjoy. Indeed, they were the greatest development of public service seen in our country. The standards set by the Civil Service spread into local government, the professions and, to some event, even into industry. That was a development which, looking back, must make us proud that it was in our country that we were able to devise a system of administration which was high-minded, ethical and actually worked, and which largely delivered what was promised. A century later it fell to the Fulton committee to put forward a number of reforms which, although substantial, did not change the ethos of the service; the important changes in the relationship with government were accomplished without too much difficulty.
The issue which has brought the questioning about the relationship between Ministers and the Civil Service is as great as anything that we have known in the past century and a half. Our particular problem is the expanding role of the special adviser. The Fulton committee recommended the use of special advisers. Page 105, paragraph 15, of the report states:
"In addition to the Permanent Secretary, there should also be in most departments a Senior Policy Adviser to assist the Minister. … His prime job would be to look to and prepare for the future and to ensure that present policy decisions are taken with as full a recognition as possible of likely future developments".
That was 36 years ago, and what was said is as relevant now as it was then. The Fulton committee on the Civil Service recommended the setting up of the Civil Service Department. In 1974, six months before I went to the Treasury, I took on the responsibility of the Civil Service Department. The Minister for the Civil Service was the Prime Minister. Harold Wilson had other matters to consider between the two general elections in 1974. I was made the Minister responsible for the day-to-day running of the Civil Service Department. That appointment followed from my membership of the Fulton committee, of which the noble Lord, Lord Allen of Abbeydale, was a member. The noble Lord, Lord Croham, was the Permanent Secretary and head of the Home Civil Service.
In its recommendations, the aims of the Fulton committee were that special advisers would not only have a close political relationship with the Minister but also be known for their standing and experience. So it was that in 1974, Nikki Kaldor, Tommy Balogh, Brian Abel-Smith and others brought their talents into the Civil Service. It was in the Civil Service Department that I had responsibility for approving them and agreeing their salaries. That was the kind of situation that was thought to be sensible. People with knowledge and understanding were brought into the Civil Service to help the political party to which they were attached. That was generally accepted.
In more recent times we have seen some useful appointments as well as some inexperienced people who may share the politics of their Minister, but we are

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unsure what else they bring to their office. We understand that apart from two individuals no special adviser can give instructions to civil servants. But that does not present the whole picture. Even apart from these two individuals, special advisers can press civil servants with the advantage that they possess of being close to the Minister and even asserting views which may not precisely match those of the Minister.
In November 2001, in evidence to the Public Administration Committee, Sir Richard Wilson, now the noble Lord, Lord Wilson, gave an account of his early experience. He said:
"I found myself at a much more junior level than I am now in a situation where special advisers were, as it were, giving me instructions and I found myself in quite difficult positions as a result of that. I think this question of how far special advisers in practice can tell or ask civil servants to do things is an issue which has existed for quite a long time as a grey area but has now become a matter of public concern and controversy".
He also pointed out that in what he calls his "junior years", he came close to being instructed by special advisers and that that was a serious matter. More recently, the Select Committee on Public Administration has taken evidence which demonstrates that special advisers have come close to taking positions at higher levels within the machinery of government. What is happening is really quite disgraceful. In our country, people who are unelected are able to offer that kind of strength to views that only they may possess. This is a serious matter, particularly given that the Government do not allow special advisers to appear before Select Committees. If they did, we would find out more about the way in which they work and carry out some of the responsibilities of which we are unaware.
If such special advisers are to hold such powers, is it not essential that the Government relax their views and allow Select Committees to discover what it is they do and how they undertake their work? In particular, I approve of the position here that no special adviser may exercise executive powers. That is an important part of the Bill, which I wholly appreciate.
It is the position of special advisers in relation to civil servants which is a major requirement of this legislation. They may be helpful to Ministers, and it is right that they should be, but they ought not to distort the production of and the detailed consideration of policy choices, which is a most important task of administrative civil servants.
In the public administration report, it is pointed out that since the general election, special advisers have consolidated senior positions in the machinery of government. The report states:
"We regret that the Government has not accepted the Committee's recommendation of a cap on the amount of money that can be voted by Parliament for special advisers".
Lord Marlesford: My Lords, perhaps I may interrupt the noble Lord. Does he not agree that there must be occasions when someone comes in as a special adviser and is then moved to an executive position. The obvious example that I can think of is Derek Rayner. He came in as a special adviser, designed and set up the Procurement Executive and became the head of it. Had he not come in
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as a special adviser, had the government of the day not then had the facility to make him the head of the Procurement Executive—I declare an interest as a special adviser in Whitehall at that time—I am jolly sure that the Ministry of Defence which greatly objected to the change of its old systems would not have welcomed him
Lord Sheldon: My Lords, clearly two separate tasks were being undertaken by that person. One was his role as a special adviser and the other was the subsequent appointment to which the person might go. One understands the division of responsibility, with particular requirements being accorded to deal with each role in turn.
So we need to move swiftly to cap the overall number of advisers as part of the forthcoming Civil Service Act. That formed part of the public administration report.
We have now reached the stage where the problem of special advisers needs urgently to be addressed. The notion of what is now called "spin" and what used to be known as the milder version of presentation has always been part of government. Putting a good gloss on policy has always been part of any administration. However, more recently we have seen some special advisers according to this practice a level of priority which has been in danger of moving from presentation, to spin, and even to distortion. What we have also seen is the departure of a number of information officers. That was really quite shameful. Those people undertook to present, pretty uncontroversially, the tasks in which they were engaged. They have left the service in considerable numbers, which is a serious signal. In the language of our time, they gave out information, rarely with spin although frequently with a touch of gloss. We need to reaffirm the standards of the service before they deteriorate further. If we forget the advantages that we have enjoyed of the ethos of the Civil Service, there is a danger that we shall come to regret it.
We have had the example of the United States President, Richard Nixon. The way in which the standards of that Administration were distorted right up to his departure from office is a lesson in what can happen in even such a committed democracy as the United States. We have only to examine the situation in the Washington of that time to appreciate the advantages that we have been able to enjoy.
Ever since the Northcote-Trevelyan reforms, from time to time anxious voices have been raised about the changing role of government and the Civil Service. This is another of those occasions. The Bill before us offers another opportunity to deal with those anxieties.
11.42 a.m.
Lord Mackay of Clashfern: My Lords, it is a particular privilege and pleasure for me to follow the noble Lord, Lord Sheldon. He has very long experience of government and as a Member of the other place. He also chaired with distinction a number of important committees there, making his authority felt throughout the Civil Service. I join him in offering congratulations to

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the noble Lord, Lord Lester of Herne Hill, on bringing forward this Bill. I also join him in his congratulations to Tony Wright in the other place on the work of the committee which he chairs. This is an example, among others, of the value of the Select Committee system in the other place. It has proved to be a considerable improvement on the arrangements over there for bringing to account the executive of government.
To shorten matters, I should say that I agree fully with what the noble Lord, Lord Sheldon, has said, in particular with his remarks about Part 2. It will save time and enable noble Lords to listen sooner to the remarks of the noble Baroness, Lady Prashar, if I simply make that comment and do not attempt to repeat the noble Lord.
However, I have some difficulties with Parts 1 and 3. As I understand it, government are the executive given powers to carry out executive acts and make decisions. Parliament is primarily a body for legislation rather than for taking executive action. It has a duty, particularly the House of Commons, to look at what is done by the executive, and this House from the point of view of examination. It also has the duty to hold the executive to account. It does so by requiring that the executive of government needs to have the confidence of the House of Commons in order to carry out its executive actions. Therefore the correct way to consider these matters is that, generally speaking, the executive should perform executive acts such as taking decisions on appointments and the like, and the executive is then accountable to Parliament for what it has done. It is also responsible for trying to hold the majority of the House of Commons in its confidence. In my view, this arrangement has underlain the whole idea of government for a very considerable time in this country.
The proposals set out in Part 1 seek to introduce procedures restricting the right of executive government to exercise prerogative functions which hitherto it has exercised under the kind of controls that I have just described. It is not at all clear that these proposals would improve on the present position. If a treaty requires a change in the law before it can be put into effect in this country, Parliament needs to be involved in that process. Of course, that often happens. So it is not clear that the executive should require the prior authority of Parliament before it enters into or ratifies a treaty. That has been the position for some time. I see the force of the arguments both ways but, ultimately, entering into a treaty is an executive act which a government should be able to undertake.
The same is true in regard to the waging of war. The decision to wage war is, I think, the most important decision a Prime Minister has to take. There is a danger in trying to dilute the responsibility for that decision by seeking to put it to Parliament. Whatever Parliament's view is, the ultimate responsibility for taking that decision must rest with the Prime Minister.
Lord Maclennan of Bogart: My Lords, with respect to the possible dilution of the executive act, does not the noble and learned Lord acknowledge that the assent of
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Parliament, in particular when there is a public division of opinion about the waging of war, enormously strengthens the executive?
Lord Mackay of Clashfern: My Lords, certainly. I agree that the Prime Minister would wish to take with him the opinion of Parliament. However, the point I am trying to emphasise is that, even if a majority of the House of Commons gives its agreement to go to war, the ultimate responsibility must rest with the Prime Minister. It cannot be shared with Parliament in that sense. The fact that the Prime Minister has the approval of Parliament to go ahead may be a considerable encouragement or source of support, but the ultimate responsibility is his and should remain so. That, of course, goes for both male and female Prime Ministers.
Part 3 is concerned primarily with executive actions in making appointments. I consider that laying down the procedures under which these appointments are made may be important, but I do not think it right for Parliament to have, as it were, a power of selection in the area of even these appointments. The area of selection so far as Parliament is concerned should be the selection of the executive government which enjoys its confidence.
As to Part 2—the central part of the Bill—I think that the changes that have taken place in recent years in regard to the appointment of special advisers and the width of functions they have been able to undertake, have at least contributed to the present feeling about government not being entirely divorced from party. There is a feeling that even in government sometimes it is the interests of the party rather than the interests of the nation that are being taken into account. Insofar as that feeling has prevailed in the nation, I think that these developments have certainly contributed to it.
I personally did not have a special adviser. Maybe that was lack of humility on my part—I do not know—hut I certainly felt that in the office which I held it was not appropriate. My noble and learned successor, who is in his place opposite, decided to have a special adviser in the form of a very senior member of the solicitors' branch of the legal profession. Considering the responsibilities that he had, I can well see why he thought that was necessary. I do not believe that anything of that sort has contributed to the feeling that I have described.
11.51 a.m.
Baroness Prashar: My Lords, it is a rare privilege to follow three such distinguished speakers. I am grateful for the opportunity to contribute to the debate and congratulate the noble Lord, Lord Lester of Herne Hill, on introducing this important Private Member's Bill.
Having waited for nearly 150 years, we now have a prospect of three Bills—this one, the one introduced by the Public Administration Select Committee in the other place and the Government, too, have promised

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to publish a draft Bill on the Civil Service in the current Session. It is like the No. 88 bus—we wait for 150 years and then three come along in a row.
I should declare that I am the First Civil Service Commissioner. I am, however, appointed on a part-time and fixed-term basis and would have nothing to gain personally from a Bill that proposes the establishment of a Civil Service Commission with greater powers than those we currently have. The same applies to my 12 fellow commissioners. We all view our tenure as a privilege and an opportunity to act as stewards of an effective and impartial Civil Service in the public interest.
I shall confine my remarks only to those parts of the Bill which relate to the Civil Service. I strongly support the Bill insofar as it seeks to entrench in statute the key values of the Civil Service and the role of Civil Service commissioners; and to clarify the respective roles of Ministers, special or political advisers and civil servants.
I should add that I am not a recent convert to this view. My conviction that we need a Civil Service Act is based on my experience both as the First Civil Service Commissioner for the past four years and also as a part-time Civil Service commissioner during the period 1991 to 1996.
Why do I think legislation is necessary? The Civil Service is changing fast. The structural changes of the 1980s and 1990s have given way to an ambitious reform agenda which has accelerated in recent years. In a widely reported speech last week the Prime Minister set out seven key ideas for the transformation of the Civil Service. These included: a Civil Service with professional and specialist skills; a Civil Service open to the public, private and voluntary sectors and encouraging interchange among them; more rapid promotion within the Civil Service and an end to tenure for senior posts; and a Civil Service equipped to lead, with proven leadership in management and project delivery.
The Civil Service has never stood still and it will continue to change to meet new demands. In the same speech the Prime Minister said:
"The question for the Civil Service in our generation is how to sustain these values, while bringing about the radical transformation our times demand".
This is the critical question because the Wicks committee, the report of which was published in April 2003, stated that it had heard nothing in the evidence to suggest that specific aspects of the current reform of the Civil Service necessarily risked undermining the core values. However, it stated that it did hear concerns that insufficient attention was being paid to the overall effect of change.
This is a real concern. The Civil Service has, quite rightly, embarked on a programme of reform in response to changing demands, but at a time of rapid change there is a need more than ever to ensure that the core values of the Civil Service are not eroded. As departments recruit more people from outside to senior positions, it is essential not only to make sure that the Civil Service benefits from their skills, experience and different ways of doing things, but also that they understand the core values which underpin
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the work of the service. I believe that these values are neither incompatible nor peripheral to the process of change.
Civil servants exercise discretionary power in their everyday work in several ways: in their stewardship of public resources; at the interface with the general public; and in the context of their policy-making responsibilities. Core values such as integrity, honesty, impartiality, objectivity and appointment on merit are one of the most important checks and balances against arbitrary use of their public power. They are a vital factor in creating and maintaining confidence in government and its institutions.
So the answer to the question posed by the Prime Minister is that we need legislation to sustain these core values and an active effort to promote and revitalise them. These values are too important to be taken for granted. It is no longer appropriate that such matters are regulated by Orders in Council, which can be changed at the whim of any government. We need a Civil Service Act which will provide parliamentary protection and oversight. The importance of introducing a Civil Service Bill at a time of rapid change should be a legislative priority because nothing is more important in the world of politics than the rules of the game and the rights of citizens.
As the noble Lord, Lord Lester, said, this is not a novel proposa—calls for a Civil Service Act have been made since 1860. Those opposed to legislation have argued that such a Bill would be difficult to draft. As we have heard, Dr Tony Wright and the Public Administration Select Committee and the noble Lord, Lord Lester, have proved them wrong. Other objections are that declaratory legislation is not helpful and might lead to inflexibility affecting the management of the service. These objections are no longer convincing because in November 1994 the Treasury and Civil Service Committee refuted these arguments rather well and I should like to quote it in full. The committee said:
"We are not convinced of the case for a wide-ranging Civil Service Act as a mechanism for either furthering or delimiting reforms of the Civil Service. However, we do believe there would be considerable value in a much narrower statute, principally designed to provide statutory backing for the new mechanisms for maintaining the essential values of the Civil Service. We agree that it is better to have a culture with a strong sense of commitment to essential values rather than to have an Act without such a culture".
More importantly, it stated:
"we believe it is better still to have both. The passage of such an Act would reflect the interests of Parliament, as the representative of the electorate, in the preservation of the values of the Civil Service; it would set the terms of the custodial responsibility of the Government of the day for the Civil Service".
I entirely agree that the scope of any Bill dealing with the Civil Service should not be too prescriptive or drafted in a way which would inhibit its evolution, organisational development or reform. But I do strongly believe that by placing the constitutional position of the Civil Service, as distinct from its daily management, under the oversight of Parliament; by providing for the respective roles and responsibilities of Ministers, political advisers and civil servants to be clearly defined within the overall constitutional framework and subject to

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independent monitoring; and by placing the Civil Service more directly under the oversight of Parliament, we will provide an important reassurance about the continued impartiality of the Civil Service and the values that sustain it at a time of rapid change.
I particularly welcome five aspects of the Bill. First, I believe it is important that the legislation reinforces the status of the Civil Service Commissioners as an independent body of people concerned with the maintenance of an effective and impartial Civil Service. In part, this is already provided by our appointment by the Crown under the Royal prerogative. The appointment of the First Civil Service Commissioner, by agreement with the Opposition parties, would provide additional reassurance about our independence and political impartiality. I am glad to see this provision in the Bill.
Secondly, any Bill must clearly set out the role of the commissioners in relation to ensuring that the key recruitment principle of selection on merit on the basis of fair and open competition is applied to the generality of appointments to the Civil Service. It should also enable the commissioners to allow appointments to be made outside of this principle in certain limited circumstances, as is currently the case.
However, I hope that the legislation does not prescribe how the commissioners would undertake their functions in detail. As commissioners, we seek to be firm on principle but flexible in practice. The flexibility inherent in a recruitment code means that we can respond quickly to changing situations and circumstances. For example, in relation to the principle of openness, we have recently provided additional advice on the use of the Internet for the advertising of posts. Generally, we want to encourage innovation and experiment within the framework set by the recruitment code. I am pleased that the Bill supports this approach.
Thirdly, the way in which the Civil Service code is promoted by departments in inadequate. One problem is the lack of awareness of the Civil Service code among new recruits and even some long-serving recruits. The code is neither well known nor promoted. Departments have much to do to turn the code into a living document rather than something only to be consulted at the time of an appeal. Against the background of change and greater movement of staff, it is critical that the code is promoted and that new recruits understand the constitutional framework within which they work and the values they are expected to uphold. I believe there is an important role here for the commissioners in monitoring that the departments positively promote the code.
Fourthly, I am concerned about the almost impossible pressure we put on civil servants if they wish to pursue a complaint under the Civil Service code. The noble Lord, Lord Wilson, who I am pleased to see will be speaking later, described it as the nuclear option. At present, civil servants who feel they are being asked to breach the Civil Service code must first follow their departmental processes before coming to the commissioners. The current process is quite
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daunting for individual civil servants. Faced with such a process, it is not surprising that some civil servants either keep silent or, in extreme cases, resort to leaking. I therefore support the part of the Bill giving Civil Service Commissioners the power to initiate inquiries rather than having to await an appeal from an individual civil servant under the code.
Finally, I believe it is consistent with a statutory framework which provides for parliamentary oversight of the core Civil Service standards for the commissioners to report annually to Parliament on their work. It is right that we account for our work and be examined on it. I am glad to see that provision in the Bill.
The Civil Service is a public asset; it exists in the public interest and there is therefore a public interest in the maintenance of a Civil Service which transcends the interests of any one administration. So we must avoid any legislation in this area becoming a party political issue. I hope that this debate will lead to a Joint Committee of both Houses being established to take forward consideration of the most appropriate legislation to reinforce the core values of the Civil Service. I very much hope that the Government will agree to this proposal.
To conclude, proper conduct has always been a prerequisite to good governance. Because of the necessary changes occurring in the way in which the Civil Service operates, there is a need to give much more attention to the ethical standards underpinning the way in which civil servants carry out their work, and clarifying and defining the respective roles and responsibilities of Ministers, political advisers and civil servants. The success of current management reforms and overall confidence in government will, in my view, depend on it. I very much hope that we will see legislation on our statute books sooner rather than later.
12.5 p.m.
Lord McNally: My Lords, the stellar quality of the speakers in this debate is a tribute not only to my noble friend Lord Lester but to the importance of the issue. I should like to go beyond the normal courtesies in paying tribute to my noble friend. He has made a massive contribution over the past 30 years to good governance and good law in this country. He has never been content simply to be a commentator or a critic, but he has been a consistent source of practical solutions. Probably the best compliment ever made by one politician about another was when Mrs Thatcher said of Lord Young of Graffham, "Others bring me problems. David brings me solutions". I suggest that my noble friend Lord Lester belongs in that pantheon of problem-solvers, and I congratulate him on the Bill.
I am very pleased also to follow the noble Lord, Lord Sheldon. I always keep in mind his dictum that the two great inheritances we have brought from the 20th century to the 21st are the BBC and our Civil Service. I believe that this House will have an important role in defending the future of both.

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I saw the Civil Service first hand as a special adviser between 1974 and 1979. I revisited the institution as a Member of this House and as a member of the Select Committee, under the chairmanship of noble and learned Lord, Lord Slynn, which looked into whether the reforms of the 1980s and 1990s had damaged and weakened the underlying ethos of the Civil Service. As has been mentioned, I also served before the 1997 election on the Labour and Liberal Democrat constitutional committee known as the Cook-Maclennan committee.
My impression, gained as a special adviser and confirmed by my work under the noble and learned Lord, Lord Slynn, was then and is now that we have a Civil Service which is politically neutral and still motivated by a considerable ethos of public service. Both features came under attack in the 1980s. We all remember Mrs Thatcher's question, "Is he one of us?" It was put more delicately by a House of Commons research paper published in May 2003, which said:
"it is argued that Conservative governments, and in particular Margaret Thatcher as Prime Minister, benefited from the fortuitous retirement of a large number of permanent and deputy secretaries … between 1979 and 1985 and by their replacement by 'sympathetic' officials".
I also believe that in the Thatcher years, the Civil Service was undermined to a certain extent by the continuing long period of service to Mrs Thatcher by Charles Powell—now the noble Lord, Lord Powell—and Sir Bernard Ingham. I do not in any way suggest that they carried out their duties during that period with anything other than due impartiality as civil servants, but I think it was wrong to allow a Prime Minister to, as it were, adopt mainstream civil servants and keep them in post for a decade or more.
The question before us, however, is: is a politically neutral Civil Service, promoted on merit, fit for purpose in the 21st century? It is, as has already been indicated, not the only solution. Sir John Hoskyns, Mrs Thatcher's think tank head, argued in the early 1980s:
"If a country's problems require radical remedies, you need a radical government. But how can you have a radical government without radically-minded officials?".
Sir John advocated then a "spoils" system,
"to replace a large number of senior civil servants with politically appointed officials on contract, at proper market rates, so that experienced, top-quality people would be available".
That was the other side of the argument. It is interesting that now, 20 years later, no major politician—as far as I know—nor political party has espoused that idea of politicising our Civil Service.
However, there is also no doubt that Mr Blair has, for a number of reasons, "played footsie" with the idea while in office. It has already been pointed out that the hybrid role of Jonathan Powell and Alastair Campbell when the Government came to office is one example of that: another is the massive expansion of the role of the No. 10 policy unit. I would challenge the Government to reconvene the committee of the noble and learned Lord, Lord Slynn, to look again at how the ethos of the
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Civil Service has survived seven years of Labour government as it looked at how it had survived 18 years of Conservative government.
The Civil Service ethos is not entirely dead. At a recent function. I met a senior Treasury official who had resigned from a lucrative, high-flying job in the City to work in the Treasury because he felt he would find there the challenge and stimulus that he wanted from his employment.
Some changes are inevitable. Sir Humphrey at 60 is no longer likely to retire with his K and his Oxbridge mastership to prune his Surrey roses, but to head for the City boardroom or a lucrative consultancy, often with a company that has been dealing with his department. The pressures do not work in only one way. Moreover, out-sourcing, short-term contracts and other reforms have had their impact. We have also seen some beneficial reforms. The Major government have not yet been given enough credit for their attempts to introduce new ethics codes and improvements into the Civil Service, including the Nolan principles.
We need a Civil Service that is flexible enough for modern needs, but protected in its best traditions, especially in its public service ethos based on the Northcote-Trevelyan principles of neutrality and merit. The Bill meets those needs. It is frankly a disgrace that nearly eight years after the Cook-Maclennan report and seven years after the Government came to office, they still dither and prevaricate.
While declaring that I was a special adviser, I shall offer a brief defence of special advisers. The noble Lord, Lord Sheldon, painted a rather lurid picture of their rampaging through Whitehall and not being responsible to Parliament. When I was a special adviser, I was in no doubt that I was responsible to Jim Callaghan, and Jim Callaghan was in no doubt that lie was responsible to Parliament. That is the route of accountability that special advisers should take. If anybody knows of a special adviser who is behaving badly, let him table a Parliamentary Question and have the Minister responsible for his appointment defend it at the Dispatch Box. That will lick him into shape.
Special advisers are not a new concept. When I was in No. 10, a historian came to see me. He said that he had traced special advisers, in one way or another, at least back to the Lloyd-George era. Those cuckoos have always been in the Whitehall nest. Of course, many special advisers—now hundreds of them—have benefited, as I certainly did, from that experience of working in government at the sharp end. They have gone on to head a major company and an economic think-tank, to become a governor of the BBC and a Member of the House of Lords—and that is just Sarah Hogg. However, New Labour has got some things wrong. There is no need for the kind of codification described in the Bill.
I shall make one final point on the media and the Government's information role. As the noble Lord, Lord Lester, pointed out, the role, profile and powers given to Alastair Campbell in 1997 were fundamental mistakes and we paid for them as regards Hutton. Part of

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the reason for that, as I said in our debate on the Hutton report, was down to Labour's bruising in the 1992 general election and its feeling that it had been outmanoeuvred and outflanked in its media operations. It learnt the most ruthless of rapid rebuttal from the American experience. That aggressive handling of the media was at the root of the spat with the BBC and we saw in it our debate yesterday. When the Newton report was published, any sensible government would have thought about it and responded in due course, but the lesson of rapid rebuttal is that one has to be on the news within 24 hours to rubbish it. We are then left with the pieces to pick up.
The Government now have a blueprint for reform in the Phillis report and it is important that we follow through with that. Although Alastair Campbell, in his political role, was replaced within 24 hours, we still await the senior civil servant who, according the advertisement,
"will need to bring about revolutionary changes in the way the government communicates and engages with its customers".
There is still no sign of that superman or woman. Indeed, in the Financial Times of 5 January, Sue Cameron wrote that part of the problem is that permanent secretaries are "out of their prams" at the idea of a supremo who will,
"achieve an unprecedented level of co-ordination across Whitehall".
Miss Cameron believes that:
"What the Blair government needs is better policy advice, not a permanent secretary for propaganda".
In one way, she is right. After seven years, the Government should lose the chip on their shoulder and take a more measured view of matters. On the other side of the coin, we want civil servants who can say "No, Minister" as well as "Yes, Minister". I agree with the noble Baroness, Lady Prashar, who said that that can best be underpinned by granting better protection to those who do say "no".
On the issue of government information, we need clear guidelines that stop Ministers dipping into the public purse for party political propaganda purposes. This House can pat itself on the back that it shamed the Government into stopping that ludicrous annual report, which was simply a Labour Party propaganda document. Government information should be separated from government spin.
The noble Lord, Lord Lester, has shown the way, but the auguries are not good for a positive and radical reply from, the Government. The sight of the Minister, the noble Lord Bassam of Brighton, on the Front Bench instead of the Secretary of State for Constitutional Affairs, who sits in this House, reminds us that we have become affectionately accustomed to the dead bat, indeed the dead hand, of Bassam. Therefore, I do not hold out high hopes for a radical declaration today.
However, the building blocks for reform are in place: the work of the UCL constitutional unit; the work of the House of Commons Select Committee under Tony Wright; the work of Sir Nigel Wicks and his predecessors; the work of the noble Lord, Lord Wilson, when he was Cabinet Secretary—I look
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forward to his speech; and the Phillis report itself. Not least, a building block has been provided by the noble Lord, Lord Lester, who has done the country a genuine public service by bringing this Bill forward today.
12.19 p.m.
Lord Wakeham: My Lords, it is always a pleasure to follow the noble Lord, Lord McNally. For most of my time in this House, it has been over questions to do with the press. He got into that area towards the end of his speech, I did not recognise his analysis of events between 1979 and 1983 under the government of my noble friend Lady Thatcher. Even if he were remotely right in what he said, it would have been a pretty severe criticism of the Civil Service rather than of Ministers for it to have been true. However, this is not the time and moment at which to debate those matters.
I join in the congratulations that all noble Lords have given to the noble Lord, Lord Lester, on bringing forward this Bill and on getting an interesting and distinguished group of noble Lords to speak in this debate. I am very honoured to be among them. The Bill raises issues of great constitutional significance. I agree with the noble Lord on the importance of the issues that he raises and agree that things are not right at the moment. However, I part company with him to some extent over the solutions that he proposes and whether they represent in all cases the best way forward.
I had the honour to be the chairman of the Royal Commission on the reform of the House of Lords, when we considered very carefully some of the issues that appear in the noble Lord's Bill. Incidentally, I congratulate him on the preparation of the Bill; even for a distinguished lawyer, it must have been an enormous amount of work. Many years ago, I remember drafting an extremely simple Bill, when I was first in the House of Commons. I swore that I would never do that again if I could find a respectable way in which to avoid it. Drafting a Bill involves a tremendous amount of work, and we are all grateful to the noble Lord for that.
I turn to the substance of the Bill, and the question of public appointments, where the noble Lord would like there to be a system of parliamentary approval for the more senior appointments. Scrutinising public appointments is a relatively common function of many overseas parliaments, especially that of the United States, but it has never been so here. However, the process of public appointments is considerably more open and transparent than it was following the establishment of the Nolan principles. I support those arrangements and consider them pretty effective, but the system is still developing. I agree that Parliament should continue to watch over that area in the years to come.
However, I see considerable disadvantages in public appointments being subject to confirmatory hearings. There would be a risk that good candidates would not put their names forward for fear of intrusive and

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partisan questioning. Recent experience on some Select Committees does not give me much comfort on that score. If the House of Lords did it, so would the House of Commons, and that would be too much. I am also very doubtful whether any parliamentary committee should seek to substitute its judgment in the place of the Minister's for an appointment that he makes, as the Minister is ultimately responsible for carrying out the policy.
The noble Lord also wants greater parliamentary oversight over the use of the Royal prerogative for making international treaties. Those powers are at present vested in the Crown, which means the Government. They enable governments to enter into treaties without any consultation of Parliament. I am sympathetic towards some of the noble Lord's concerns in these matters. Of course, a treaty does not itself change our domestic law and, until it is enacted in our Parliament, it can have no domestic effect. We in the Royal Commission recognised that the present arrangements are far from ideal. On the other hand, settling treaty negotiations inevitably requires Ministers to have a degree of flexibility over some issues, which cannot possibly be set out in advance. I— and the Royal Commission—would have liked changes in that area. Although I am reluctant to enhance Parliament's powers over those of the executive in that respect, a great deal can be done without legislation.
In 1999, the noble Lord, Lord Lester, recommended that the House might consider setting up a Select Committee to scrutinise international treaties. That idea has a lot to commend it. My understanding is that successive governments have invited consideration of international treaties under the Ponsonby rule. More could be done in that area, particularly to see whether treaties raise issues that merit debate or reconsideration before they are ratified. All that is the sort of thing that the House of Lords could do with advantage.
I have considerably more sympathy with the noble Lord's proposals for putting on a statutory basis the role of the Civil Service. I have been reluctant to go down that road, but recent events have convinced me that some Act is required. A fully independent Civil Service, free from political pressures, is a linchpin in the conduct of public affairs. Whether the proposals in the Bill are exactly right, I do not consider myself expert enough to know, but I have a considerable amount of sympathy with what the noble Lord proposes.
I wish to summarise my views on a more general point. Many of the noble Lord's proposals to control the executive are, in my view, a very serious indictment of Parliament, whose job it is to control the executive. The failure to do that effectively is a very serious matter. If Parliament is prepared to exert itself, it has immense powers; any time when it feels strongly enough about anything, it can bring the Government to book. A handful of Members in the other place can bring the House to a standstill in 20 minutes. I certainly do not recommend that, but much can be done short of really tough action. As a former Chief Whip and Leader of both Houses, and a fully paid-up
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member of the usual channels, I did all that I could to discourage such behaviour. The power of Parliament is immense, however. Our democracy requires that it is used a hit more frequently and a bit more strongly than it has been in recent years.
I welcome the noble Lord's Bill. He has done us all a great service in bringing it forward. Considerable parts of it I approve of while others I am less happy about, but he has certainly indicated serious problems that need tackling. It is about time that they were tackled.
12.28 p.m.
Lord Holme of Cheltenham: My Lords, it is a great pleasure to follow the noble Lord, Lord Wakeham. May I say how strongly I agree with him that the solution for Parliament in many of these issues lies in our own hands, and that we should find a way in which to act more effectively as a check on the executive? May I also, like other noble Lords, pay tribute to my noble friend Lord Lester? This is an extremely ambitious but very elegantly constructed Bill and, if it is passed, it would be an important plank in our constitutional arrangements. It deserves very serious consideration by the House.
I shall concentrate on Part 2, as the noble Lord. Lord Sheldon, and others, have done. As he mentioned, in May 2002, through good fortune and the ballot, I was able to introduce a debate on the need for a Civil Service Act, which had many distinguished contributors, some of whom are speaking again today. On that occasion, it was particularly apparent that two former Cabinet Secretaries, in the shape of the noble Lords, Lord Butler and Lord Armstrong of Ilminster, both declared themselves converts to a Civil Service Act.
It is interesting that those who have led the Civil Service find themselves, in retirement, believing that the arrangements need clarifying. Sir Richard Wilson, as he then was—the noble Lord, Lord Wilson, as he is now—from whom we shall hear later, in his farewell speech when he left his job as Cabinet Secretary anticipated retirement by saying that he saw a clear need for a Civil Service Act. In that sense he was ahead of his erstwhile colleagues. It is noteworthy that very shortly thereafter we were promised an issues paper from the Government. That was in March 2002, and we are now two years on. We have had no issues paper or the consultation that we were promised by the Government and, although I gather that Douglas Alexander MP in another place has promised a draft Bill in this Session, we still have not seen a Bill for the House to consider. So we have no issues paper, no consultation and, so far, no Bill to consider.
I wonder whether this is because the debate in May 2002 was summed up in rather sunny and reassuring terms by the noble Lord, Lord Macdonald of Tradeston, who was in his place earlier and I regret is no longer here. He said that there was no pressure because there was no crisis. In one sense, that is right. There is no immediate crisis but any rational analyst would say that since then the problems that we were discussing have been apparent and that in some ways they have been exacerbated.

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At the heart of a lot of the concerns expressed by noble Lords is the relationship between civil servants and advisers. I am not phobic about the number of advisers, I think that quotas is not the right way to go. The way in which special advisers do their jobs in relation to civil servants is far more important.
I particularly commend to your Lordships Appendix 13 to the Hutton inquiry, which is very illuminating on this issue. This is the notorious e-mail appendix, which requires close textual analysis by anyone interested in the way in which British government have operated in recent years. It is extremely illuminating. So illuminating is it that it makes the Book of Kells look positively understated by comparison. Let us take page 662, where a Felicity Hatfield is communicating "on behalf or Alastair Campbell—I stress that this involves not Alastair Campbell himself but Felicity Hatfield on his behalf—directly with John Scarlett. She wrote in an e-mail:
"I asked someone in my office, whose judgement I trust, who has nothing to do with this area, to read the dossier 'cold', as it were, and give me impressions, which I want to pass on.
"Overall, she"—
that is, this third party who is no expert—
"found it convincing. CW/BW, in particular".
She went on:
"'By the time I got to human rights, I was in no doubt he has to be dealt with'. Indeed, she felt she could have read a lot more on human rights.
"However, she found the nuclear section confus[ing] and unconvincing. 'It left me thinking there's nothing much to worry about'".
These are the reported views of the third party—this friend of Felicity Hatfield who is a friend of Alastair Campbell. The e-mail continues:
"She felt the whole section lacked the clarity of the rest of the document. 'It needs a section that sets out what you need to make a nuclear weapon, set alongside to what he has already'. She also felt it could benefit from an explanation of sanctions, how they work, what they do".
After a lot of rather more legitimate criticisms—spelling mistakes of "Qusay", "Edinburgh" and so on—Felicity Hatfield says:
"Finally she felt that the conclusion box on CW/BW should include a list of agents in possession and production. I agree with that".
This is a communication from Felicity Hatfield on behalf of Alastair Campbell to John Scarlett, the head of the JIC. Anybody who reads this carefully will not only have been slightly surprised by the conclusions of the noble and learned Lord, Lord Hutton, but must think that there needs to be some proper adjustment of the relationship between advisers, and their friends, and those who are in positions of executive responsibility for weighty matters. In considering the Bill of the noble Lord, Lord Lester, we should address ourselves to the issue of the relationship between advisers and executive members of the Civil Service.
Sir Andrew Turnbull appeared yesterday before the PAC. I was delighted to see that he said:
"One of the things I am sure will come out of the Butler review"—
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I admire his certainty and hope he is right—
"is that if you accept the premise that you want to inform the public to the greatest extent possible, how can you do this in a way which makes it clear what is intelligence and what is the view of Ministers".
I was very reassured to hear that from the Cabinet Secretary and I hope that his prediction of what the Butler inquiry will do is right because Parliament is the apex of accountability—this bears on something the noble Lord, Lord Wakeham, said. This was the view of the Newton commission on behalf of the Hansard Society, of which I have the honour to be chairman. If Parliament is to be the apex of accountability then, alongside a Minister's normal responsibility to Parliament for the operation of his department, we need clear accountability for the Civil Service as a whole for the way it carries out its functions in compliance with various codes of conduct. As the noble Baroness, Lady Prashar, said, that should be conducted through the Civil Service Commission.
We have seen wonderful constitutional improvements at the initiative of this Government. I think I should pay tribute to them from these Benches. It has been a period of great constitutional reform. But I hope that they will not mind me saying that there has been a slightly Jekyll and Hyde approach. Alongside the great achievements of the Human Rights Act and devolution for Scotland and Wales we have seen the way that certain great British institutions operate when put under considerable pressure: I put it no higher than that. We have seen the ethos of Cabinet government, the judiciary and the BBC challenged. We have seen their authority challenged in many ways and it would be good to know that the Government have learnt the error of their ways before we have to put the Civil Service, one of the great decorations of the British system, into that same threatened category.
The proof is that the Government finally do something about a Civil Service Act. I hope that they will adopt my noble friend's admirable Bill. If they do not, will they please produce a Bill of their own very quickly? When the Minister replies perhaps he will be kind enough to tell us when we shall see the Bill—the actual date on which he anticipates that we shall have it before us. One way or another, we need to put the Civil Service into a rational statutory framework where people know what their spheres of responsibility arc, and where they can get on with their jobs in the way that has always been a decoration to the British system of government.
12.38 p.m.
Lord Maclennan of Rogart: My Lords, I am pleased to have the honour of following my noble friend Lord Holme and in particular to sustain his underlying message that there is a degree of urgency about confronting these issues that has not been reflected in the seven years of this administration.
I ought to begin by declaring an interest as a member of the Prime Minister's Advisory Committee on Business Appointments, which looks at Civil Service

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issues. I should also make it plain that anything I may say about that is entirely a reflection of my own views and not those of the committee.
In approaching this debate, I reflected at some length on why there has been such inaction on the part of the Government in response to the reports that have been coming forth for many years, going right back to the most important report, to which the noble Baroness, Lady Prashar, referred—that of the Treasury Committee in 1994.
When the Labour Party entered into an agreement with my party prior to the 1997 general election, to which my noble friend Lord Lester referred, I had assumed that in government it would seek to give legal force to the code, which should be tightened up, to underline the political neutrality of the Civil Service and to clarify lines of Civil Service and ministerial responsibility; and that it meant it. It is frankly astonishing that nothing has been done. It was referred to by the noble Lord, Lord Sheldon, as a disgrace. However, I think that we are obliged to ask why there has been this delay.
The evidence is not clear. As my noble friend Lord Holme said, the noble Lord, Lord Macdonald of Tradeston, spoke of there being no crisis to precipitate a change of the kind that is so widely advocated by those who have considered these issues. However, I beg to disagree with the view that there is no crisis. There is a crisis of confidence in the business of government. It is a crisis that affects not only the view of the public about Ministers; it is one which also affects the public's view about the Civil Service.
It may not be a crisis in the sense of the crisis that faced the former Prime Minister, in the autumn of 1978, when he returned from the Caribbean and asked, "What crisis?" But it is a crisis none the less, to which Ministers have repeatedly referred as a withdrawal of support, at elections, from the democratic process; as a commitment of the public to pressure groups rather than politics; and as a crisis which erupts from time to time in different places, which led to the Hutton report and the Phillis report. How many more manifestations of this difficulty and problem of loss of public sympathy and support do the Government require before seeking to address these issues?
It seems that we have to approach this with a sense of history and a recognition that the conventional, classical view of the relationship of the Civil Service to our constitution is one which will no longer be sustainable. Perhaps the striking definition of that was given as long ago as 1985 in the famous Armstrong memorandum in which he said:
"The Civil Service as such has no constitutional personality or responsibility separate from the duly constituted Government of the day".
That seemed even then to be a somewhat shocking view, but it is not a sustainable view now. Parliament is at the centre of our constitution. Parliamentary supremacy is at the centre of our constitution, and the Civil Service must be seen as relating not solely to the Crown or the executive but also in its relationship to
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Parliament. It requires that that relationship should involve at least a duty—an explicit duty—to tell the truth to Parliament.
I take issue with the noble and learned Lord, Lord Mackay of Clashfern, in seeking to draw the sharp distinction that he did between the role of the executive in our constitution and the role of Parliament. The role of the executive can be effectively discharged only to the extent that it is supported and sustained by Parliament. It is not a matter in which the executive can pick and choose the occasions on which they seek, as he put it, the advice of Parliament about an issue of war and peace. The reality—and it is a reality which I think the present Prime Minister recognised in going to war in Iraq—is that Parliament's support is essential if the aimed services are to be committed to a major conflict in which life is threatened.
To revert to the main thrust of my argument, civil servants must, it seems to me, be firmly embedded in their parliamentary accountability in relation to a declaratory Act that does not prevent them from operating flexibly and adaptably in the public interest, but make quite clear where their duties lie.
I return briefly to the issue of the delay. I think it is interesting that, on 24 February, we had from the Prime Minister a speech to which the noble Baroness, the First Civil Service Commissioner, referred. I do not think it has been given anything like the publicity that she suggested in her own contribution, which I greatly respected and admired. I think that that speech reveals the tension that exists at the highest level of government between the goals of the Prime Minister for the Civil Service and the objectives that we have been discussing today of securing the accountability and continuing neutrality—the Northcote-Trevelyan principles—in the modern world.
The speech was predominantly about effectiveness. It was predominantly about how to make the delivery of the Civil Service's goals more achievable. It was not about accountability. It was not about responsiveness, save indirectly. If I may, I shall cite a couple of examples of the thinking that lies behind this. The Prime Minister said, and I agree:
"The calibre of the individuals within the Service is enormously high; in many respects every bit as good as their private sector counterparts".
I thought that that was a curious way to put it, for it reveals his instinctive belief that it is the private sector—the private sector values and private sector ethos—which should inform the Civil Service. He continues: "So why does it"—the Civil Service—"need radical reform?". He says:
"The world has changed and the Civil Service must change with it. The purpose of change: not to alter its ethos and values but, on the contrary, to protect them by making them work in a way more relevant to the modern age".
That does not actually sound like the preservation and the advancement of the Northcote-Trevelyan principles.
Even less like Northcote-Trevelyan is the statement:
"The principal challenge is to shift focus from policy advice to delivery … It means working naturally with partners outside of Government. It's not that many individual civil servants aren't capable of this. It is that doing it requires a change of operation and of culture that goes to the core of the Civil Service".

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It seems quite clear that the Prime Minister is, despite his disclaimer, seeking to alter the ethos and values of the Civil Service, and by a process of indirection. If such a change is to go ahead, then it must be clearly defined and limited. I am not at all opposed to the Prime Minister's goal of focusing more on delivery, but we need to look at the fallout consequences of that.
In a later passage, the Prime Minister said:
"In future the key roles in finance, IT and human resources will be filled by people with a demonstrable professional track record in tackling major organisational change, whether inside or outside the Service".
It is quite clear that there is a deliberate blurring of the tests of Civil Service capability. That has consequences which we ought to recognise.
These matters need to be on the record because to my mind they explain clearly what is holding up the reforms that so many of us seek. The Prime Minister continues:
"We intend to continue to recruit extensively from outside the Civil Service to senior posts, including at the highest levels. We also need to examine the business rules to make it easier for civil servants to move into the private sector and back again".
How are we to respond to that? Codes govern the consideration of these matters and the appropriateness of the moves backwards and forwards between the private and the public sectors. Are these codes adequate to sustain proper scrutiny of the appropriateness of such moves and, indeed, to sustain the belief in the integrity of the Civil Service—a point that was spelt out in the parallel paper published on the same day by the Cabinet Office? That paper drew attention to the values of the Civil Service including the belief that the incorruptibility of the Civil Service means that public policy and individual decisions made by civil servants are not influenced by considerations of personal gain either while they are in the service or in the form of an outside appointment as a reward after they have left. That is a core value that has to be preserved but it must be recognised that it comes under much greater stress as a result of this encouragement of trafficking between the private and the public sectors.
I hope that the Government will not delay further in bringing forward their proposals. Seven years is substantially too long a period. As Mr Kenneth Clarke said in another place in January, procrastination can amount to deception. Some of us are beginning to wonder why the Government are not even prepared to bring forward a draft Bill for consideration as it will clearly, be some time before either House is in a position to enact its provisions.
12.54 p.m.
Lord Wilson of Dinton: My Lords, the noble Lord, Lord Lester, probably feels that he is now festooned with praise but I am afraid that I shall add my own warm tribute to his work in bringing forward this Bill. It is a very important subject and his triggering this debate today is an act of true public service.
I should also like to add my praise to the praise that has already been given to Dr Wright for the work of his Select Committee in this field which was very
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important. I am impressed by and grateful for the speeches that we have already heard today. They show great understanding and wisdom regarding the Civil Service. The service is lucky to have that kind of supportive and intelligent debate.
I hope that the noble Lord will forgive me if I do not follow him on Parts 1 and 3 of the Bill. I have to admit that that is partly because I do not fully understand all the implications. I am also tempted to say that there are so many proposals for major constitutional change bubbling away at the moment to uncertain effect that I am not sure one should be putting more of that kind in the pot, except as regards a Civil Service Bill. I strongly support the principles underlying Part 2 of the Bill. If I may say so, I made that clear while I was still head of the Civil Service not just in the speech that I made towards the end of my time there but also before that. I have come round to that view which I shall explain in a minute.
We still have one of the finest civil services in the world. I am partisan but I would argue that we have the finest. It is highly regarded by other countries. There is a regular stream of visitors from other countries who come to see how the Civil Service operates and to learn from us. I was pleased to note that my successor, Sir Andrew Turnbull, in his report last week—that report has been mentioned—quoted impressive statistics from the World Bank and the OECD on the performance of our Civil Service compared with that of other countries, showing us in the top position for "government effectiveness" in 2002. He was right to praise the service where praise was due. He was also right to remind the service of the need for continuous improvement in its performance. His proposals carry forward reforms of the service that it has been developing for many years. I was interested to note in what he said some echoes of the report of the Fulton committee of which the noble Lord, Lord Sheldon, was a very distinguished member in the 1960s.
I was interested to hear what the noble Lord, Lord Maclennan, said about the Prime Minister's speech. I do not have time to comment on what he said but it is worth noting that the Prime Minister paid a welcome tribute to the Northcote-Trevelyan reforms—something to which we can all give a ringing endorsement. He made clear his ambitions for public services. That is a proper thing for a Prime Minister to want to do. The noble Lord, Lord Maclennan, raised the question of movement backwards and forwards between the Civil Service and the business sector. If the Minister can add anything further to that, one would be interested to hear it.
The Prime Minister also said that the Civil Service must not act as a shock absorber to maintain the status quo. Of course, the basic point is right although I question the metaphor. Without wishing to go too deeply into motor mechanics, I do not think that shock absorbers hold things back. They provide the passenger with a smooth ride over bumps while travelling at speed. I should have thought that most governments would like that.
The Civil Service has never been frightened of change. There has been change, great change, over the years. I can only give one example in this short speech

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but between the late 1970s and 1997, the number of civil servants was reduced by nearly 40 per cent, from nearly three-quarters of a million to below half a million. That was done quietly and without fuss. No cuts now proposed compare with that kind of change. The senior ranks of the Civil Service were cut by more than 20 per cent in just two years between 1995 and 1997. The service has shown that when it is required by the democratically elected government to respond to calls for change, it will do that.
The secret of successful reform of any great public institution or service is to base it on an intelligent understanding of that institution and its values, not treating them as some Dickensian irrelevance; to build on its strengths; to establish trust; and to respect the conventions within which the institution works. That is as much true of the Civil Service as it is, say, of this House or the judiciary.
The relationship of each government towards the Civil Service is one of stewardship for which each government is accountable, and must be accountable, to Parliament, as was described earlier. Each government are under an obligation to respect those features of the service which must not change—selection on merit, integrity, political impartiality, giving its best advice, and a commitment to public service. Each government are under an obligation not to use the resources of the state for party-political purposes. Each government are under an obligation to leave the Civil Service in a condition which will serve future governments equally well.
In return, the obligation on the service is to serve the government of the day to the best of its ability, to support them in formulating their policies and to implement them excellently and energetically. That is the deal. It is against that background that I see a Civil Service Bill on the lines before us today, or of the kind proposed by the Public Administration Committee—I shall refer to it as the Select Committee—not as a means of protecting vested interests or stalling reform, but as an essential component of any continuing reform programme.
I have not always been in favour of a Bill. My reasons for thinking that it is now needed are very similar to those quoted earlier from the noble Lord, Lord Butler. There is a wide perception that the Civil Service has become politicised. I regret that perception very much. In some ways, it is confusing, because the term is unclear and means different things to different people. Whether one believes it or not, it is a perception which has now to be addressed. At a time of rapid change, Parliament and the public are entitled to be reassured that those characteristics of the service which should remain unchanged indeed remain unchanged.
The legislation required to do that is not earthshaking, nor really very difficult. The Committee on Standards in Public Life, under the chairmanship of Sir Nigel Wicks, has prepared the ground with thoroughness, lucidity and understanding. The Select Committee has done sterling work in consulting relevant interests and in preparing a short Bill which
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commands widespread support. The noble Lord has put a great deal of wisdom and effort into drafting a parallel Bill.
The legislation should put the role of the Civil Service Commissioners on to a statutory basis, as Northcote and Trevelyan recommended 150 years ago. Surely 150 years is enough time in which to consult and introduce a Bill. The commissioners are the bedrock of the Civil Service's constitutional position and the guarantee of its commitment to fair and open competition on merit. The battle between merit and patronage is never really finished. The commissioners are our guardians against patronage. I pay tribute to the work of the current commissioners, especially the noble Baroness, Lady Prashar, who has done so much to ensure that their role remains strong.
The principle of merit must be maintained for permanent appointments to the service. I shall not repeat what the noble Baroness said hut, to the extent that the commissioners are prepared to make limited exceptions—for instance, for inward secondments—that is well and good. But they must be in control. There must be no backdoor route for patronage or cronyism.
The legislation should give the Minister power to regulate the conduct of civil servants and special advisers by codes. It should give the commissioners power to make such inquiries as they think fit into the operation of those codes. It should provide for the regulation of special advisers. A limited number of special advisers, properly deployed, can be a great asset to Ministers and their departments alike. It is not fair to special advisers generally that their role has acquired a bad reputation, but there have been difficulties, as everyone knows.
It is in the interests of everyone that the boundaries of the role should be clearly defined, and that those difficulties should be resolved, so far as one can humanly do that. Following the Wicks report, the Select Committee and the noble Lord have proposed the way forward very succinctly. Both this Bill and that of the Select Committee contain very sensible proposals for defining what special advisers cannot do. That seems the right approach, coupled with a limitation on the overall number of special advisers by Parliament, and with the regulation of conduct of special advisers by code, as I mentioned.
There are of course the three posts in No. 10 which have "executive powers". The Select Committee accepts that there should be two such posts, as did the Wicks report. The noble Lord proposes that there should be none. I understand his position, but if the price of getting a Bill were to be that concession, I would pay it provided that the executive powers of the special advisers did not extend to their being involved in recruitment to permanent posts.
Above all, the Bill should bring the operation of the Civil Service more clearly within the oversight of Parliament. The matters should be subject to proper scrutiny, not dealt with in private. The Civil Service Commissioners should make an annual report to Parliament. When I was Secretary to the Cabinet, I

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received quite a lot of letters of one sort or another. I remember getting one from a Member of Parliament asking me to hold the government to account. I found it very hard to find the words to reply, because it seemed to me so clear that it was the job of Parliament to hold the government to account.
None of that should be contentious. The Government have already accepted, in their reply to the sixth report of the Neill committee in July 2000, that there should be a Bill, and that it should embed selection on merit on the basis of fair and open competition, with responsibility vested in the Civil Service Commissioners. The Government also said in that reply that they accept that an overall limit on the number of special advisers should be included in legislation, and that increases in the limit would require the consent of both Houses of Parliament. Nothing could be clearer.
There is a school of thought which says that most of those things can be accomplished without legislation. In my view, that is not now so—not in the world today where the concerns and issues are more contentious than they were and the role of Parliament more necessary. Frankly, too much water has passed under the bridge.
It is now more than six years since the Government first committed themselves to a Bill. That commitment has been repeated many times, with occasional warm words, but nothing has happened. What matters in the management of change is not only what people say, but what they do. If leaders promise action but do nothing, people draw their own conclusions. The question why the Government have still not produced a Civil Service Bill is becoming deafeningly loud. I hope that the Minister, as others have said, will tell us the date when the Government will bring forward a Bill.
1.7 p.m.
Lord Smith of Clifton: My Lords, it is daunting for a mere academic such as myself to intrude in this debate, which has had such a galaxy of experienced contributors. It is particularly daunting to follow the noble Lord, Lord Wilson of Dinton, who gave us the benefit of his experience as head of the Civil Service. My feeble credentials, such as they are, are that 40 years ago to the day I gave empirical research evidence and oral evidence to the Treasury committee on recruitment to the Civil Service. I think that the report of that committee was one of the influences that led to the creation of the Fulton committee.
I heartily congratulate my noble friend Lord Lester on introducing the Bill's Second Reading. It is one of the few major and coherent attempts to roll back the ever-encroaching powers of the executive at the expense of those of the legislature. In that respect, I particularly applaud the thrust behind Part 1, which seeks to provide a statutory basis for much government activity that currently takes place under the exercise of the Royal prerogative. It is important in the 21st century to circumscribe and strictly limit that arbitrary and unfettered power of the executive branch
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of government. That said, I wish to concentrate on Part 2, as most other noble Lords have done, which deals with the Civil Service and political advisers.
It is important to review the contemporary context in which the senior Civil Service has had to operate and some of the concerns that have arisen of late. That picture is very unsatisfactory, and moreover shows every sign of further deterioration. Swift remedial action is called for, and the Bill, if enacted, could provide an important source of treatment. As has been said, the Northcote-Trevelyan and Fulton models, which shaped the character of the Civil Service over the past century and a half, have long since been allowed to atrophy.
Changes designed to meet modern circumstances are, of course, both necessary and natural. Adaptation, we hope, adds to the efficiency of the workings of the state. The problems arise when such innovation continues over time without any pause for reflection whatever on the need to update similarly the operations of the principles of accountability. Changes in the practices of the state bureaucracy require a complementary refurbishment of the constitutional arrangements under which they should operate. That democratic imperative has invariably been neglected by successive governments. One major consequence of that neglect has been the increasing politicisation of the senior ranks of the Civil Service.
The erosion of an independent, non-party, openly recruited, merit-based Civil Service began apace with the Thatcher administration. The Prime Minister chose to intervene personally in the appointment of the highest posts. As the noble Lord, Lord McNally said, "Is he one of us?" became Mrs Thatcher's favourite selection criterion. As with so many other aspects of Thatcherism, politicisation was adopted and greatly extended by the new Labour Government when they came into office in 1997.
Any number of innovations were introduced into the practice of government, including tsars, task forces and the like—and, more importantly, in terms of the Bill, a massive increase in the number of political advisers. Their number has risen, as others have noted, from 39 in 1997 to 81 to date—in February. No. 10 has taken by far the lion's share of those. Two of the advisers there were given authority over the work of civil servants—Mr Jonathan Powell and Mr Alastair Campbell. Those unprecedented powers, together with the mushrooming growth of political advisers, have given rise to much critical concern by both the Select Committee on Public Administration in the Commons and the Wicks Committee on Standards in Public Life. Both have urged a Civil Service Act to place the Civil Service on a statutory basis and formally to distinguish it from the activities of political advisers. To those I would add tsars, task forces, management consultants, lobbyists and think tanks, which have all penetrated deeply into Whitehall. Without an Act to delineate the boundaries between the Civil Service and those denizens of the new political demi-monde, all the personnel involved will coalesce, as they nearly do now, into a Soviet-style nomenklatura.

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Those developments have been allowed to happen willy-nilly. No systematic thought in government circles has ever been given to the problems of accountability, or even to adequate management control. When the Department for Constitutional Affairs was created overnight last summer, one could have been forgiven for entertaining the hope that among its functions it would be charged with a task of creating a reflective capacity for examining the implications of changes that inevitably occur in the working of government. Alas, there is absolutely no sign of that at present. The Government are fortunate in having a number of distinguished lawyers in their ranks. Unfortunately, all of them made their fame and fortunes at the commercial Bar. None possesses any significant expertise in constitutional law, and that lack perhaps explains why so little government attention is paid to the basic constitutional principles of public accountability which is one of the bastions of liberal democracy.
That is one of the reasons why the Bill calls for the appointment of a Minister for the Civil Service who would be charged with safeguarding the independence of the Civil Service. Codes of conduct are not strong enough in themselves and need statutory backing as the Bill proposes. The Bill also seeks to put the onus on all Ministers and political advisers of maintaining the integrity and independence of the Civil Service.
It was the view of the Wicks report last year that a Civil Service Act was needed to go some way to restoring the trust between governors and the governed. The Committee on Standards in Public Life has reiterated that in its latest report. I fully appreciate the point it made and its recommendation, but I am a little worried about the use of the word "trust" in this context. It is too redolent of an age where deference by the people was expected. Political scientists 40 years ago demonstrated that the reason for the electoral success of the Conservatives was that they could rely on the support of the deferential working class voter. Happily, he and she have now largely disappeared, but unfortunately the political appeal to trust has not. It was part and parcel of Tony Blair's personal style.
"Trust me" was his clarion call and, for a while, it served him well. But it is an essentially anti-democratic approach. Trust may be expected of subjects, but surely not of citizens. The modern electorate wants to be persuaded by rational argument. Being frank and open with the voters helps to establish credibility in government and the policies of all political parties. I would argue that it is credibility rather than trust that is in most need of restoration. As Wicks says, a Civil Service Act would help to restore that. It would delineate the boundaries between the regular Civil Service on the one hand and the denizens of the political demi-monde on the other. Such an Act would define and codify where one begins and the other ends.
The portents are not hopeful. As the noble Baroness, Lady Prashar, said, only last week the Prime Minister was reported as,
"throwing his weight behind the important themes of the Gershon efficiency review".
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which calls for a smaller, less departmental and more innovative service, using more specialist skills. In addition, recruits to the more senior posts should come from outside while new entrants would be expected to gain experience in the private sector, or leave altogether, in the course of their careers.
Such reviews by an individual businessman are not new. Edward Heath, Margaret Thatcher and John Major variously employed Sir Derek Rayner from Marks and Spencer, and Sir Roy Griffiths from Sainsburys, for advice. Sir Peter Gershon is but the latest in a long line of gurus brought in to promote greater efficiency in government. That is all very well in itself. But who will look into the democratic implications of an unbridled, buccaneering Civil Service, staffed at the top by a bunch of itinerants? The ever-present tension in government between the competing imperatives of efficiency and democracy must be satisfactorily managed. It has not been and the passage of the Bill would aid that.
1.17 p.m.
Lord Goodhart: My Lords, I congratulate my noble friend Lord Lester of Herne Hill on introducing the Bill. It is bold because it is three Bills in one. Part 1 extends parliamentary control over the exercise of prerogative powers; Part 2 amounts in itself to a Civil Service Act; and Part 3 creates a statutory basis for certain public appointments. Each of those parts could be a Bill. Part 2 is the key section of the Bill, dealing with the Civil Service. It is certainly the part that has received by far the most attention from speakers in our debate and it is certain that the proposals in Part 2 are those that are most likely to be adopted in legislation in the foreseeable future.
In Part 1 I have singled out Clause 3 and Schedule 1. They would require parliamentary ratification of treaties and parliamentary endorsement of entry into war. It is striking that parliamentary approval is not needed for treaties. There are few other countries where the executive is entirely free to enter into binding treaties with no parliamentary process. In the United States treaties require the consent of the Senate. If treaties require a change in United Kingdom law, then, as the noble and learned Lord, Lord Mackay of Clashfern, pointed out, legislation has to be passed by Parliament. But in other cases there is no need for ratification by Act of Parliament or even by any form of secondary legislation.
As treaties are usually negotiated and signed in private, there is no chance of parliamentary scrutiny of draft treaties. For example, this time last year a new agreement on extradition was signed by the United States and the United Kingdom. This House and the public generally knew nothing whatever about it until after it had been signed. It contained provisions which caused serious concern and it would plainly have been desirable to have had parliamentary scrutiny of the draft. I believe that the treaty-making powers should be brought under parliamentary control. I regret that, on that, I differ with the views of the noble and learned Lord, Lord Mackay of Clashfern.

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Many people have proposed that your Lordships' House should have a Select Committee to study draft treaties. That is certainly a step which I consider should be taken, and I believe that all treaties should need ratification by a resolution of each House of Parliament.
I turn to the question of war. War is an act which has enormous consequences for this country. Even limited wars, such as those fought in recent years by the United Kingdom, have very important consequences, and I believe that it is extraordinary that no parliamentary process is required. There may be circumstances in which the urgency of the case requires an immediate reaction; for example, self-defence, where an immediate military response is required to an unprovoked attack. But, in other cases, entry into armed conflict should plainly require parliamentary approval.
I welcome the fact that the Prime Minister sought and obtained the approval of the House of Commons before this country entered into the Iraq war. I suppose that that creates a precedent, but it is one that is not necessarily binding on future governments. I believe that there should be a statutory duty on governments to obtain parliamentary consent to entry into armed conflict wherever it is possible to do so. There, again, I regret that I disagree with the noble and learned Lord, Lord Mackay of Clashfern. I believe that parliamentary consent is particularly important where the war is highly controversial, such as the Suez war in 1956 or the Iraq war last year. In such cases, it is plain that the Prime Minister should have the support of the political representatives of the nation behind him before he commits this country to war.
I turn now to Part 2 of the Bill, which concerns the Civil Service. This is a matter in which I personally have a particular interest, having been a member of the Committee on Standards in Public Life under the chairmanship of Sir Nigel Wicks when we published our 9th report and, indeed, previously, under the chairmanship of the noble Lord, Lord Neill of Bladen, when we published our 6th report. In both reports and, in particular, in the 9th report, we pressed very strongly for a Civil Service Act. In paragraph 10.7 of our 9th report, we said:
"We consider it crucial, in a democracy where the Executive is accountable to Parliament, that the procedures for sustaining the fundamental principles identified throughout this report should be subject to parliamentary scrutiny and decision. This, we believe, is the most certain and effective way of delivering the necessary public and parliamentary confidence that the constitutional boundaries are being effectively maintained".
We set out in Recommendation 34 of the 9th report what we saw as the contents of this Bill. I am very glad that my noble friend has incorporated those recommendations into his Bill. As a number of noble Lords have mentioned, the report of the Public Administration Select Committee also calls for a Civil Service Act and, indeed, it has printed its own draft of such an Act.
Proposals for a Civil Service Bill, to become a Civil Service Act, have received support from all sides of your Lordships' House: from the noble Lord,
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Lord Sheldon, with his experience as Minister for the Civil Service; from the noble Lord, Lord Wakeham, with his experience in Cabinet; and from my noble friends Lord McNally, Lord Holme of Cheltenham, Lord Maclennan of Rogart and Lord Smith of Clifton. However, I welcome, in particular, the speeches made by the two Members of your Lordships' House who have very direct and personal experience of the Civil Service. I refer, of course, to the noble Baroness, Lady Prashar, as the first Civil Service Commissioner, and the noble Lord, Lord Wilson of Dinton, as the immediate past Cabinet Secretary. Both made extremely powerful and persuasive speeches in favour of the introduction of a proper Civil Service Act.
The Government regularly respond to recommendations of this kind by saying, "Of course we support the principle of a Civil Service Act", but they regularly add, "when parliamentary business allows", or other weasel words indicating that the Government have no intention of introducing such an Act. Parliamentary business does not seem to have thus allowed for 150 years, and it is now time that it did.
We recognise that the Government have now stated their commitment to bringing forward a draft Civil Service Bill—indeed, in this Session. However, we need to keep up pressure on the Government, and I hope that the Minister will be able to indicate something more definite than he already has done about the Government's intentions and timetable in bringing forward their proposals for a draft Bill. If the Minister is unable to give any clear timetable, I believe it is important that this Bill should go forward to a Committee stage in order to enable the debate on these issues to continue in more detail.
My noble friend has had great success with Bills which he has introduced in the past. They have not in themselves been enacted, but many of them have prodded the Government into taking overdue action. My noble friend's human rights Bills were followed in due course by the Human Rights Act 1998. Two years ago, he introduced a civil partnerships Bill. A civil partnerships Bill is now about to be introduced by the Government. Last year, he introduced an equality Bill. The Government now propose consultation on a Bill to bring the existing equality bodies—the Commission for Racial Equality, the Equal Opportunities Commission and the Disability Rights Commission—into a single equality and human rights commission, as he proposed. I hope that this Bill will turn out to be the precursor of a government-backed Civil Service Act.
My noble friend has made enormous contributions to strengthening the constitution and human rights in the United Kingdom. I believe that this Bill adds another to his long list of campaign medals and, on behalf of my party, I have great pleasure in giving it our fullest support.
1.28 p.m.
Lord Henley: My Lords, I shall endeavour to be brief because I believe that after two-and-a-half hours of debate on the Bill we should all be very grateful, in the absence of the Secretary of State for Constitutional

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Affairs, to hear the noble Lord, Lord Bassam, attempt to answer some of the points that have been put in the course of the debate and possibly to take forward some of the assurances that have been given in another place.
I start by echoing what the noble Lords, Lord Sheldon and Lord McNally, said in praising the Civil Service as it is and as it was. I was lucky enough to serve as a Minister—albeit in a much more junior role than my noble friend Lord Wakeham or the noble Lord, Lord Sheldon—for some eight years, and I certainly want to echo exactly what was said about the Civil Service being high-minded, ethical and impartial. I agree with the noble Lord, Lord Wilson, that it is the finest Civil Service in the world. If I say that, at least I am not being partial in the way that the noble Lord thought he might be.
Since 1997, we have seen much of that put at risk. As many speakers have reminded us, we have seen an enormous growth in the number of special advisers. I am told that the number has more than doubled from 39 to 81.
We have seen some special advisers such as Alastair Campbell and Jonathan Powell given executive authority over civil servants and in the first two years after 1997 we saw virtually all the old government press officers eased out, as the noble Lord, Lord Sheldon, reminded the House, and replaced by somewhat more overtly political appointees. It would be interesting to know—I should be grateful if the Minister could tell us—how many of those new appointees formerly worked for the Daily Mirror.
Things have changed. At the same time we have seen the Government repeatedly talk about the need for new legislation on the Civil Service. The noble Lords, Lord McNally and Lord Maclennan, reminded us that even before 1997, when the Government set up a joint commission with the Liberal Democrats—that seems a very long time ago now and I imagine it seems even longer ago for the Liberal Democrats—they gave a commitment to give,
"legal force to the code which should be tightened up to underline the political neutrality of the Civil Service … to clarify lines of civil service and ministerial responsibility".
They confirmed that commitment in July 1998 in response to a report of this House. I could list other occasions: in July 2000, in response to the sixth report of the Committee on Standards in Public Life, they again gave a commitment to bring forward a Civil Service Bill. I understand that that commitment was again repeated in 2001 in evidence to that committee.
The Government continue to give commitments but do nothing. As recently as 21 January of this year, in a debate in another place initiated by my right honourable friend Mr Kenneth Clarke on his return to the Front Bench, the Cabinet Office Minister and Chancellor of the Duchy of Lancaster, Mr Douglas Alexander, originally promised a draft Bill in this Parliament but, under pressure from an intervention, he agreed to amend that to a draft Bill in this Session. He then said that there is more need for consultation. More need for consultation after seven years, as one noble Lord put it, seems a bit
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much. I find it quite extraordinary. We have had consultation over all those years, we have had endless recommendations from the Committee on Standards in Public Life and others, and we have had endless promises from Her Majesty's Government, but nothing appears to happen, other than that we are now offered the promise of a draft Bill, but after consultation.
At this stage it would be very useful if the noble Lord compared and contrasted that with what we see in terms of another constitutional matter, the Constitutional Reform Bill, which has its Second Reading before this House on Monday. It is a Bill that more than anything requires a great deal of consultation and discussion among all parties because it makes fairly major constitutional reforms, and a Bill that this Government appear to think should be shoved through as quickly as possible. I should be grateful if the Minister could give some thought to why we are supposed to have quite so much consultation on a Civil Service Bill, important though it is, but none whatever on the Constitutional Reform Bill, large parts of which were dreamt up on the back of an envelope to get the Government out of a mess that they had made in terms of a reshuffle last summer.
Turning to the Executive Powers and Civil Service Bill, which has been introduced by the noble Lord, Lord Lester, this is one of those rare occasions when I can offer a degree of support, praise and congratulations to the noble Lord. As he knows—he mentioned it—the Select Committee on Public Administration in another place introduced a Bill along the lines of Part 2 of his Bill—a draft Bill—which has now been brought to the House in a formal manner by my honourable friend Mr Oliver Heald, the shadow Leader of the House. I understand that that Bill was to have its Second Reading on 30 January; unfortunately it was never reached. I understand—the noble Lord, Lord Lester, mentioned this—that there was some chance of the Bill having its Second Reading today. I believe that the noble Lord is somewhat more optimistic about procedures in another place; it is fairly unlikely that it will have its Second Reading today, but we wait in hope. As he knows, there is some considerable overlap between that Bill, which has been introduced by my honourable friend—what we could call the Public Administration Committee Bill—and Part 2 of his Bill. The overlap is great enough for one of his honourable friends in the debate in another place on 21 January to have said:
"I see no reason why the draft Bill that is effectively before this House and the Bill that my noble Friend [Lord Lester] hopes will receive a Second Reading in the other place in March should not be considered together before a special joint Committee for pre-legislative scrutiny as quickly as possible. We could then really make progress—never mind all this business about holding yet more consultation. The Government are always consulting, but they use that as a very neat way to delay decisions. If they really wanted to make progress, they could do so now. I see no reason, after waiting seven years … why we should wait for yet more consultation beyond that which has already taken place".—[Official Report, Commons, 21/1/04; col. 1352.]
I can support Part 2 of the Bill, but my support does not necessarily apply to Part 3. Having read that quotation from Mr Paul Tyler I have considerable sympathy for the sentiments behind his suggestion that the matter could be considered by a Joint Committee. However, while having sympathy with that, I do not

927
believe that that is necessarily the best way to proceed. Valuable as both Bills are to protect the impartiality of the Civil Service and to put the responsibilities of special advisers on a statutory footing—we on these Benches have a long-standing commitment to the enactment of such legislation—nevertheless I do not believe that this Bill is necessarily the best way forward.
In a matter as important as this we need a government Bill and soon. If this Bill and my honourable friend's Bill in another place can encourage the Government to produce one, they will have served a very useful purpose. I end by saying that I look forward to the noble Lord, Lord Bassam of Brighton, taking forward the commitment that the Chancellor of the Duchy of Lancaster made on 21 January; telling us when we shall see the draft Bill in this Session; and if we are to see it in this Session, will it be possible to complete it in this Session, or will it have to be carried over into another Session?
1.37 p.m.
Lord Bassam of Brighton: My Lords, I have two early tasks. One is to join in the general congratulations to the noble Lord, Lord Lester, on bringing the Bill to your Lordships' House for Second Reading today. It has stimulated one of the most sparkling debates on the subject to which I have had the benefit of listening for a very long time. As ever, as the noble Lord, Lord Goodhart, said, it follows a long tradition of initiatives of the noble Lord, Lord Lester, which take us forward in progressive government and towards reasserting an important series of principles in legislation.
My other early task is to declare an interest. Recently, my partner has become a civil servant at Grade 7. I feel that I should open my heart on that matter and share that with your Lordships. I confirm that I have that interest. I am hoping that it will provide me with important insights into the working of the Civil Service. However, I now understand better the contents of my eight year-old daughter's lunch box which I have to prepare daily as a consequence of her mother going to work rather early.
Those two early tasks done, I turn to the business in hand. We have had a star-studded and distinguished cast of speakers in the debate, focusing on issues that have been clearly identified in the Bill put forward by the noble Lord Lester. It is fair to say that there is almost universal agreement on the importance of Part 2 of the Bill, which looks at the Civil Service and the position of special advisers. There is little dissent as to the importance of that element of the Bill.
There is rather more scepticism over Parts 1 and 3 of the Bill. The noble and learned Lord, Lord Mackay of Clashfern, and the noble Lords, Lord Wakeham, Lord Wilson of Dinton and Lord Henley, were less certain of the value of those parts, although they recognised the importance of the issue. The noble Lord, Lord Goodhart, said that it was three Bills in one. He is probably right.
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All noble Lords gave credit to and supported the independence and the integrity of the value system that underpins the Civil Service. I echo that sentiment from the Government Benches. Indeed, on reading the Prime Minister's very important speech last week I thought that he affirmed that value very powerfully indeed. Having said that, the noble Lord, Lord Lester, has brought forward a carefully crafted Bill which raises important questions about the organisation of our system of government. I have already welcomed the thoughtful contributions that it sparked. I am not sure that I want to be described too often by the noble Lord, Lord McNally, as a "dead bat" or even a "dead hand", I prefer to be a "flashing blade". I am not sure whether I shall illustrate that during the course of my response. That is certainly the mode in which I usually approach most things.
The noble Lord, Lord Lester, will be much more familiar than I am with the historical context of our debate. It was of course—I cannot hesitate in making this reference—a Liberal Cabinet led by Lord Russell in 1854 which first decided to introduce a Civil Service Bill. As noble Lords have adroitly observed, it has taken a long time to see one. It promptly backtracked and it was left to Gladstone in 1868 to introduce in most part the Northcote-Trevelyan changes. He probably agreed at that point that a Bill was necessary.
Before I turn to the specific provisions of the noble Lord's Bill, I should make some general remarks about the exercise of prerogative powers. It is important to make clear that Ministers are, of course, already accountable for the exercise of prerogative powers, just as they are accountable for the full range of their departmental business. It is for Ministers to account for and to justify their actions to Parliament, and for Parliament to hold Ministers to account—a point which has been amply echoed and exemplified during our deliberations on the Bill this morning. In the context of discussing prerogative powers, we look forward to the forthcoming Public Administration Select Committee's report on this issue.
The noble Lord's Bill deals in large part with the regulation and conduct of the Civil Service. Additionally it covers executive powers. Much debate was provoked on that issue—notably I thought from the noble and learned Lord, Lord Mackay of Clashfern.
In their response to the 9th Report of the Committee on Standards in Public Life, the Government committed themselves to publishing a draft Civil Service Bill for consultation. There has been much comment on that during the debate. We said that we would publish the Bill once we had received the Public Administration Select Committee's proposals for legislation. That committee published its draft Bill on 5 January.
In another place on 21 January—as a number of your Lordships have mentioned—the Minister for the Cabinet Office, Douglas Alexander, gave a commitment that the Government would bring forward a draft Bill for consultation—and I want to make this absolutely plain—in this parliamentary Session. I repeat that commitment today. Last week the Prime Minister referred to what he described as Douglas Alexander's announcement of our plan for a Civil Service Bill.

929
So it is clearly embedded in government thinking. I can assure the House that the views expressed in today's debate will be taken into account as we continue with the preparation of our own draft Bill. It is important that we seek to build consensus. I do not think that there is exact consensus. In a sense, the Bill of the noble Lord, Lord Lester, gives voice to that in Parts 1 and 3. I should say that I cannot offer my support to the noble Lord's Bill today, although obviously, in line with convention, we shall not oppose its second reading.
The Bill would place the Civil Service and the Civil Service Commission on a statutory footing. It would require Ministers to uphold the impartiality and integrity of the Civil Service and to give statutory force in primary legislation to the Civil Service Code. Noble Lords have supported those important principles.
We will take those proposals into account in framing our draft Bill. I should like to reassure the House that we place the highest importance on maintaining the impartiality and integrity of the Civil Service. In our response to the 9th Report of the Committee on Standards in Public Life we set out a number of commitments to further underpin those values. First, the appointment of the first Civil Service commissioner—and I pay great tribute to the noble Baroness, Lady Prashar, for her work—will be made following consultation with the main opposition parties. Secondly, the Civil Service Code will be amended to clarify the procedures that a civil servant should follow where he feels that a special adviser is exceeding his authority. Thirdly, we will amend the special advisers' code of conduct to clarify their relations with civil servants. Our draft Bill will build on that important work.
Many noble Lords referred to the position of special advisers. My noble friend Lord Sheldon led the charge very ably. He identified a problem with their relationship with the rest of the Civil Service. The noble Lord, Lord McNally, as one would expect, praised the role of special advisers, having of course declared, quite rightly, his past interest and involvement. I was interested that the issue of a cap on the number of special advisers was raised, although the noble Lord, Lord Holme, who is no longer in his place, said that he was less concerned about that. I think that he suggested that was a matter of lower importance. He also wanted us to look very closely at the relationship of special advisers with civil servants, but I think he understood their importance and value.
The noble Lord's Bill makes a number of proposals in relation to special advisers, including placing the code of conduct on a statutory footing and requiring special advisers to uphold the integrity and impartiality of the Civil Service. We will of course take those proposals into account in preparing our draft Bill. However, while today we have heard the familiar range of criticisms of special advisers, it is worth reminding the House that there is substantial agreement across our public life about the valuable role that special advisers can play. The noble Lord, Lord Wilson of Dinton, underlined that.
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The First Division Association, in giving evidence to the Committee on Standards in Public Life, said:
"The FDA has made the point in our evidence and separately that the special adviser system is a good one; it is an asset … special advisers are an asset to the Civil Service; they are an asset to Ministers".
The independent Review of Government Communications—the Phillis review—said:
"We believe special advisers to be an integral part of modern Government, and their political affiliation is both welcomed by Ministers and an important buttress to the impartiality of the Civil Service".
And the Committee on Standards in Public Life in its Ninth Report referred to,
"unanimous agreement about the value which they bring to our constitutional arrangements".
I thought that the noble Lord, Lord Marlesford, although he is not in his place, made a useful intervention when he helpfully pointed out the value that special advisers bring to government in fresh thinking. I do not think we should put that on one side, although the noble Lord, Lord Maclennan, seemed to be rather more worried about the links between the private and the public sectors in bringing in some private sector experience into the public service. I would like to think that the public service ethos is strong and powerful enough and has around it a set of principles which enable us to use the best from wherever it comes.
It is important that special advisers observe the highest standards of conduct. I remind the House that this Government introduced the model contract for special advisers, setting out clear and transparent terms and conditions for their employment, and the Code of Conduct for Special Advisers, which the Public Administration Select Committee described in 2001 as,
"A clear statement of the role of advisers and a helpful strengthening of the protection provided to the neutrality of civil servants".
Our Government have a strong track record on matters of propriety when it comes to the role of special advisers and their relationship with the rest of the Civil Service.
The Government are committed to public appointments on merit, using a fair, open and transparent process. The Bill's provisions are similar to a number of recommendations made in the Public Administration Select Committee's report of July 2003. These included proposals for the involvement of Parliament, through relevant Select Committees, in key public appointments, and parliamentary approval of the appointment of the Commissioner for Public Appointments. The Government's response, published last December, makes clear our view that the current arrangements for making public appointments are rigorous and effective. We see no need to change them to further strengthen that rigour and effectiveness—they are about right. Ministers should be responsible for the appointments that they make, and Ministers should account to Parliament for those appointments. As the Committee on Standards in Public Life has said, a clear

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line of accountability is the best way to ensure that appointments are properly made and that the right people are held responsible for those appointments.
The noble Lord, Lord Goodhart, focused on the provisions of the Bill proposed by the noble Lord, Lord Lester of Herne Hill, that deal with our international commitments, with his interesting reflections on the United States example. The Bill contains a number of provisions that would fundamentally affect the exercise of authority in the conclusion of treaties by the United Kingdom. It was interesting that, with their far greater experience of government than mine, the noble Lord, Lord Wakeham, and the noble and learned Lord, Lord Mackay of Clashfern, were not certain of the Bill's approach with regard to treaties.
Some of the provisions seek to draw on existing parliamentary practice, but the key planks of the Bill, as it relates to those United Kingdom treaties that are subject to ratification, go a considerable step further. They would require either a resolution to be passed in both Houses, or a report to be made by a Select Committee to Parliament before ratification can be effected for every such treaty. These provisions would not only delay the ratification process, but would be a substantial burden on Parliament's time, without necessarily or materially adding to the scrutiny that Parliament is already at liberty to make.
We have said that we remain open to considering ways of improving the efficient and effective scrutiny of treaties by Parliament, and we have taken steps to do so. We have widened the scope of the Ponsonby Rule, on which the noble Lord, Lord Wakeham, remarked, to allow more treaties to fall within its remit, and to ensure that Select Committees in another place have the opportunity to consider each treaty laid before Parliament under that procedure. Since 1997—following the suggestion of the noble Lord, Lord Lester of Herne Hill—all such treaties have routinely been accompanied by an explanatory memorandum. These are made directly available to all Members, and widely published, including on the Internet. The measures proposed in this Bill would not enhance the efficient and effective scrutiny of treaties by Parliament, and for that reason we do not support them.
A number of specific points were raised during the course of the debate, which I may not have covered in my overall commentary. It is right that I address some of those points now, before I conclude. The noble Lord, Lord Lester of Herne Hill, made some specific comments about executive powers. It is worth reminding your Lordships' House that we made it clear when we were elected that we intended to strengthen the centre of government. There has been criticism of the numbers of special advisers in place. As a number of noble Lords said, there are some 27 special advisers at No. 10. This compares with a senior Civil Service that is comprised of some 3,500 officials. Much has been made of the 1997 Order in Council allowing up to three special advisers in No. 10
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to be appointed with executive powers. The noble Lord, Lord Wilson of Dinton, as Cabinet Secretary, described the order as,
"putting those three posts back to where all special advisers were before 1991".
The 1997 Order in Council simply removed the restriction confining advisers solely to giving advice to Ministers.
The noble Lord, Lord McNally, referred to the Phillis review of government communications. It is worth reflecting that since the appointment of David Hill as director of communications that position no longer carries any executive powers. The noble Lord, Lord Sheldon, made some comments about the clarity of roles in the Civil Service. We would all agree with that. It will be one of the tasks of the new permanent secretary for government communications to ensure that the existing rules for guidance are fit for purpose and to decide whether any further clarification is needed on that point.
I have covered most of the points that were raised. I detect the unhappiness at the delay, as many noble Lords see it, in bringing forward a Civil Service Bill. I heard clearly what the noble Lord, Lord Henley, said about consultation. We believe that consultation is right. As the noble Baroness, Lady Prashar, said, we have the prospect of three Bills on the Civil Service in play. The noble Lord, Lord Wilson of Dinton, said that he did not believe that it was a difficult task to draft a Bill and to draft it properly.
We will be publishing a draft. I cannot give a precise timetable. It will be in the current parliamentary session. If I had a preference—I speak slightly out of turn here—it would be published before the summer Recess. It will have to take its place in the drafting queue. I understand that it is in the process of being drafted. I also heard the important pleas made both today and on other occasions for there to be some joint consideration of the Bill by a committee of both Houses when it is published. We will consider that, and we will listen carefully to what both Houses have to say on that point.
I have set out the reasons why the Government do not lend their support to the noble Lord's Bill. However, we are absolutely committed to upholding the integrity, independence and impartiality of the Civil Service and the powerful and important voice that the Civil Service gives to impartial and high-grade advice. I entirely go along with the point that we have the finest Civil Service in the world. It is a Civil Service that needs to change and reflect modern times, the case for which was powerfully made by the Prime Minister in his speech.
We accept the case for Civil Service legislation, and today's debate has assisted us greatly as we work up our own draft Bill for consultation. I join in the congratulations of the noble Lord, Lord Lester of Herne Hill. Today's debate, his Bill and the Bill that is being produced by Dr Tony Wright have been valuable. I look forward to the time when we will have more discussion on a draft government Bill, which all Members of your Lordships' House who have been involved in today's debate have long awaited.
1.58 p.m.
Lord Lester of Herne Hill: My Lords, I remember some years ago I was speaking about one of my human rights Bills at nine o'clock in the evening, when a grumpy Member of your Lordships' House got up and said, "I want to remind the noble Lord, Lord Lester of Herne Hill, that it is after the dinner hour, and I think that no serious points ought to be made in this House after the dinner hour". I am aware that in one minute's time, it will be after the lunch hour, so I will speak very briefly indeed. Before I say anything more, I want to comment on the festooning of compliments, as it was described by the noble Lord, Lord Wilson of Dinton. At the end of the 19th century there were two very distinguished constitutional historians called Stubbs and Freeman. They made a habit of writing complimentary reviews about each other's books, until one day a wag said:
"Ladling butter from alternate tubs, Stubbs butters Freeman, Freeman butters Stubbs".
There is a certain tendency for excessive compliments. They are always appreciated, but I would like to pay a compliment to everyone who has taken part in this debate. Everyone has made a very important contribution. Taking part in the debate were four former Cabinet Ministers, a former Cabinet Secretary, a serving Civil Service Commissioner with huge previous experience in public administration, two former special advisers who both knew the rules and kept to them—including, I hope, myself—and a very distinguished former Lord Chancellor. This has been a most remarkable, wise, well-informed debate. If only the playwright Samuel Beckett were still alive, the name of the game would have been "Waiting for Godot", because we still wait for Godot. Although it is quite clear that the Minister would like a Bill to be published before the end of July, it is quite clear also that he is not allowed to say so because the Government do not have that commitment.
At this stage, I shall say little about the criticisms made of Parts 1 and 3, although I would like to say something. There has been not near-universal, but universal support for the principles in Part 2. Nothing that the Minister has said today suggests that the Government disagree with any part of Part 2 or, for that matter, any part of Dr Wright's committee's draft Bill. It would be perfectly possible to segregate Part 2, which comprises 15 clauses including the supplementary clauses, and one schedule—a nice, short, simple Bill—from the rest.
Why did I put the rest in? It is part of a constitutional framework, and Part 2 is a subset of that. I have enormous respect for the noble and learned Lord, Lord Mackay of Clashfern, but he and I have never really agreed on some constitutional reform proposals, as he will remember. He, I think, would like the present arrangements, whereby the monarch rather than Parliament is king. I would prefer to put in charge Parliament and the constitution, as is the case with the constitutions of the rest of the Commonwealth and the Republic of Ireland, for example. But that is a wider question. Luckily, the Public Administration Committee will produce a report very soon on prerogative powers. When that report is published we
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will all study it, and perhaps some of us, including me, will change our minds. I shall say nothing more about either that or public appointments.
The real question is: what on earth are we to do, given the shilly-shallying and procrastination of the Government about introducing even a draft Civil Service Bill at this stage'? I suggest that one might make progress in the following way: if noble Lords give this Bill a Second Reading and it is then remitted to a Committee, given that the Official Opposition, represented here by the noble Lord, Lord Henley, have indicated enthusiasm for some mechanism of advancing the issues properly, for which I am most grateful, the idea put forward today by the noble Baroness, Lady Prashar, for a Joint Committee of both Houses, seems a way forward, provided that it did not have to wait perhaps until autumn or winter for a government draft Bill. One way forward might be to set up a Joint Committee of both Houses after Second Reading, with suitable terms of reference to consider: Dr Wright's Bill, Part 2 of my Bill, but not the rest, and, when it arrives, the Government's draft Bill.
In other words, the committee could start its work now; it could then be enriched by the Government's Bill; the consultation would begin under proper joint parliamentary auspices; evidence could be given; the Government could be helped by listening to that evidence; they could produce their Bill in July, September or October; and the committee could produce its report before the end of this Session, after full consultation. That seems preferable to my taking up parliamentary time in taking this Bill through all its legislative stages in this House, only to be lost in the Commons through lack of parliamentary time.
That seems a good reason for giving this Bill a Second Reading, so that we can seek to raise the Government's game and make progress with all deliberate speed and not all deliberate procrastination. Therefore, I ask the House to give this Bill a Second Reading.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Harbours Bill [H.L.]
2.7 p.m.
Report received.
Clause 1 [Amendment of procedure for dealing with applications for harbour orders]:
Lord Triesman Lord Triesman moved Amendment No. 1:
Page 2, line 14, leave out "conservancy authority" and insert "conservation body"
The noble Lord said: My Lords, you will recall that in Committee on 26 January I gave an undertaking that the Government would consider the amendments to this Bill moved by the noble Lord, Lord Berkeley, and currently standing part of it. I am pleased to confirm the Government's support for the intended

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effect of the noble Lord's amendments, but I am moving amendments of our own to make some minor technical corrections to the Bill.
Amendments Nos. 1, 2, 5 and 6 amend the current references in the Bill to "conservancy authority" to read "conservation body". The term "nature conservancy authority" has not been used in legislation before to describe English Nature and the Countryside Council for Wales. Also, the term "authority" does not accurately describe the function of those bodies. Amendment No. 3 corrects a mistaken reference to the "Countryside Commission of Wales". The body's proper name is the Countryside Council for Wales.
Finally, Amendment No. 4 is designed to bring consistency to the Bill. It requires a local authority or nature conservation body informing the Secretary of State that it wishes its objection to a harbour revision order made by the Secretary of State of his own motion to be referred to an inquiry or be heard by a person appointed by the Secretary of State to do so in writing. That will bring the procedure for objecting to harbour revision orders made by the Secretary of State on his own motion into line with the procedure in the Bill for objections to harbour revision orders where the application has been made by someone other than the Secretary of State. I beg to move.
Lord Berkeley: My Lords, I am grateful to my noble friend Lord Triesman for what he said about the amendments that I moved in Committee and that the Government have accepted them as a reasonable compromise. They were put down following extensive consultation. It is good to know that the Government now accept them on that basis.
In respect of these six amendments standing in the name of my noble friend Lord Triesman, I apologise for getting the wording wrong in five of them. I am grateful to the Government for getting it right and as they would like to see it. As regards Amendment No. 4, clearly it is good to state that objections must be in writing. Therefore, I support all the amendments, and I am very grateful to my noble friend.
Lord Greenway: My Lords, the amendments stem from an amendment tabled in Committee, which effectively gave the right of calling for a public inquiry to English Nature and the Countryside Council for Wales. I am sure that the Government are well aware that when an exception is made for one or two bodies, other bodies may get a bit upset. I rise merely to voice the concerns of the Royal Yachting Association, which feels that if this right has been given, a similar right should be given to, say, the Sports Council to cover concerns in that area.
The Royal Yachting Association has called for a public inquiry only twice in the past 10 years, which reflects its commitment to resolving issues through alternative means. As a yachtsman, the noble Lord, Lord Berkeley, will no doubt appreciate these concerns. I merely mention this now as a marker perhaps for the Government to reflect on before we reach any further stage.
On Question, amendment agreed to.
Lord Triesman Lord Triesman moved Amendments Nos. 2 and 3:
Page 2, line 31, leave out "conservancy authority"" and insert "conservation body""
Page 2, line 35, leave out "Commission of and insert "Council for"
On Question, amendments agreed to.
Clause 2 [Amendment of procedure where harbour revision orders are made by the Secretary of State of his own motion]:
Lord Triesman Lord Triesman moved Amendments Nos. 4 to 6:
Page 3, line 10, after "State- insert "in writing"
Page 3, line 20, leave out "conservancy authority" and insert "conservation body"
Page 3, line 24, leave out "conservancy authority" and insert "conservation body"
On Question, amendments agreed to.

Air Traffic Emissions Reduction Bill [H.L.]
2.11 p.m.
Lord Beaumont of Whitley: 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.—(Lord Beaumont of Whitley.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Viscount Simon) in the Chair.]
Clause 1 [Integrated air transport plan]:
Baroness Dean of Thornton-le-Fylde Baroness Dean of Thornton-le-Fylde moved Amendment No. 1:
Page 1, line 5, leave out from "to" to end of line 12 and insert "bring United Kingdom aviation emissions within the Government's plan to meet overall United Kingdom emissions targets"
The noble Baroness said: In speaking to Amendment No. 1, I shall speak also to Amendments Nos. 2, 3 and 4. I believe that if this Bill is given a fair passage, my amendments will add to a Bill which currently is seriously flawed and certainly unworkable. That sets against the Government White Paper, financial instruments and government policy. In fact, the Bill is unnecessary.
Nevertheless, I shall speak to the amendments. Regarding Amendment No. 1, as currently worded the Bill singles out aviation and aviation emissions. I do not believe that that can be done. This morning, I was interested to read a press release issued by the Green Party of the noble Lord, Lord Beaumont of Whitley, which refers to the fact that aviation is not included in the overall content of the Government's approach to emissions. I did not think that I would agree with the Green Party but I do. The Bill is flawed by not treating aviation emissions as part of the Government's overall policy on emissions. If we do not take them in the round, it is not possible to have a proper policy dealing with this aspect of environmental issues.
There is no doubt that for certain named airports in this country, the key cause of emissions pollution is not the aeroplanes, but the cars on the roads around the airport. Heathrow is a good example. That is one reason why it makes sense to look at the problems in the round.
Current global carbon dioxide emissions from aviation account for between 2 and 3 per cent of the total. The intergovernmental body, which is regarded as being very independent, estimates that the percentage will increase to around 6 per cent by 2050. If absolutely nothing is done about aviation emissions—the industry feels that something should be done and that work should continue on technology to keep emissions down—a gloomy forecast could be 14 per cent.
One of my criticisms of the Bill is that it deals only with the United Kingdom. In the UK, road transport accounts for around 21 per cent of all emissions, and power stations for 26 per cent. Aviation accounts for 0.5 per cent. That is the nature of the problem and that is why I believe that my Amendment No. 1 would add to the Bill by looking at emissions in the round, within the Government's general environmental approach.
On Amendment No. 2, the Bill as drafted sets quite arbitrary targets, but does not prescribe a mechanism for assessing the effectiveness of any measures needed to meet those targets. That is why that amendment is needed.
The amendment's second paragraph requires the Secretary of State to have regard to the impact of this Bill on "employment and investment". That is crucial. An enormous number of UK jobs depend on aviation, well over 300,000 directly and up to half a million indirectly. However the impact is assessed, it must consider in the round the impact on employment and potential inward UK investment.
The amendment's third paragraph requires the Secretary of State also to have regard to how the measures would impact on "consumers and business". Again, the Bill covers only the UK. We must consider consumer choice. People are using aviation in a way that ensures that they do not use road and other forms of transport such as trains any more than necessary. The more that aviation is restricted, and the fewer places available to fly from, the more we will impact on the environment.
We have to assess the Bill's impact on business. The UK has the highest inward investment record of any country in Europe. Any company that has successfully brought inward investment into the UK will cite access and distribution facilities as one of its top three reasons for coming here, apart from the language. If we did not have such broad aviation access, business would not have invested as it has.
Moreover, this is an island. We are not in a block like the rest of Europe, where a train can travel from France all the way across Europe. An alternative method of distribution is available there. Aviation is very important to us as a country.
The fourth proposed paragraph considers the impact on the "competitiveness and prosperity" of the aviation industry. I make no apologies for putting
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forward this amendment. We are good at aviation in the UK. We are very successful and we lead the way. Proposals have been put to the Government that the European Union should take on hoard an emissions trading scheme which would help to keep down emissions from aviation. We were delighted to learn that the Government have agreed to take that forward during their presidency of the EU, which is shortly to come to this country.
We cannot have a railway track from one end of Europe to the other. It is no use arguing that we have the Eurotunnel. Should all those in the UK who want to travel to Europe have to travel through that tunnel? That would add to environmental damage in the south-east. It is important to look at the Bill's impact on the UK aviation industry.
If Amendment No. 2 is accepted, the fifth paragraph would require the Secretary of State to have regard to,
"the competitiveness of the UK economy".
We live in a global trading world and we are a trading nation; we always have been. Well over 35 per cent by value of our exports go overseas by air. That affects the well being of our economy. It also has an effect on our well being socially. We are a multicultural nation. Today, many families made up of UK citizens have relatives living outside these islands. They need aviation facilities to keep up contact with their wider families. So certainly it is terribly important that we should consider how the Bill will affect the whole of the UK and its competitiveness.
Amendment No. 3 seeks to leave out "local authorities". That is not because I wish to exclude local authorities—I do not—but, as it is worded at the moment, the Bill is too restrictive; we need to consider wider communities. If the Bill went through unchanged, it would cut across the arrangements that many airports in the United Kingdom have already. My own city—Manchester—has very good arrangements with local residents groups, as well as with the structured local authority, on issues such as noise and other factors. These groups have a right for their views to be heard and to be taken into account.
So replacing "local authorities" with "communities" is not intended to eliminate local authorities from the consultations but to extend them to people within their areas. Gatwick has similar arrangements. Heathrow, probably the most well known airport, and various companies within BA—including BAA, which runs Heathrow—have ongoing arrangements with resident groups there.
Amendment No. 4 seeks to remove the narrow reference to "air users". I do not see how you can discuss a Bill and require measures which do not include representations from the industry it directly affects. At the moment there is no reference to the industry in the Bill. My amendment seeks to bring in the UK air transport industry. Again, that would not exclude aviation users, but it would mean that the industry would have a right to a place at the table when issues affecting the industry are being discussed. In my view, to exclude the industry would not only be wrong but perverse.
I will be very interested in what the noble Lord, Lord Beaumont, has to say about my four amendments. I beg to move.
Lord Beaumont of Whitley: It may be useful to the Committee if I give my reactions to the amendments brought forward by the noble Baroness. I do not admit that they are all necessary, although one or two are definite improvements.
I understand—I hope that the noble Baroness will confirm this—that if these amendments are accepted it is not her intention to divide the Committee on whether Clause I should stand part of the Bill. That would be a total wrecking amendment and against the traditions of the House. I see that the noble Baroness is nodding.
Baroness Dean of Thornton-le-Fylde: The noble Lord has done me the courtesy of asking me the question directly across the Committee even though I have corresponded with him before this stage today. If the noble Lord is indicating that he will accept these four amendments, then, no, it would not be my intention to press for a Division on Clause I stand part. But that does not mean that I will continue to support the Bill throughout its further stages.
Lord Beaumont of Whitley: I understand what the noble Baroness is saying. I do not propose to oppose the four amendments although I do not entirely go along with them. In particular, I think it is a pity that we are removing some of the goals from the face of the Bill. It is not my intention to oppose the amendments.
Lord Davies of Oldham: It may be useful if I present the Government's view on the amendments and put them in the context of government policy. We are of course committed to taking a lead in tackling the problem of climate change. As I am sure all noble Lords are aware, we have made a commitment under the protocol that during the period 2008 to 2012 UK greenhouse gas emissions will be reduced to 12.5 per cent below 1990 levels. We have also set ourselves a domestic goal of a 20 per cent reduction in UK carbon dioxide emissions below 1990 levels by 2010. As set out in the energy White Paper, we are putting the UK on a path to a 60 per cent reduction in CO2 emissions by 2050, with real progress by 2020.
We believe that the aviation sector needs to take its share of responsibility in tackling this problem. However, the Kyoto protocol target and the energy White Paper goals relate only to emissions from domestic aviation, and domestic flights account for only about 3 per cent of the emissions from UK aviation. International flights from the UK do not currently count in the national inventories of greenhouse gas emissions, and as yet, there is no international agreement on ways of allocating such emissions.
The Kyoto protocol assigned responsibility for action to reduce international aviation emissions to contracting parties working through the international
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civil aviation organisation. The UK's commitment to reduce emissions is economy-wide. When we were drawing up the energy White Paper, we recognised that our targets would not necessarily apply equally to each individual sector of the economy and that circumstances would differ depending on factors such as the underlying growth of demand, trends in technology and the potential for using alternative fuels.
The White Paper, however, makes it clear that we should ensure that the aviation industry is encouraged to take account of and, where appropriate, reduce its contribution to global warming. We restated and built on this in the air transport White Paper.
The Government are committed to a comprehensive approach to these important issues, using economic instruments to ensure that growing industries such as aviation are catered for within an overall reducing total of greenhouse gas emissions.
I have addressed my remarks primarily to the significance of Amendment No. 1, but grouped with it are Amendments Nos. 2, 3 and 4. I have noted carefully the comments of my noble friend Lady Dean on those amendments and the intent behind them.
We recognise the importance of Amendment No. 2 and the merits of it in considering the impact on business, consumers and competitiveness, in addition to impacts on the environment from the proposals in the Bill. I also think it right to consult representatives of those groups which are likely to be significantly affected by legislative proposals such as those in the Bill.
My noble friend is proposing that representatives of the local authorities and air users are deleted from the Bill's proposed list of consultees. However, local authorities in the vicinity of airports and representatives of air users, such as passengers, could be considered to fall into the description of groups which are likely to be significantly affected by the Bill.
As the Committee will recognise, the Government are adopting a neutral stance on these amendments. We can see the force behind my noble friend's representations. However, I stress again that we need to see emission targets and the improvement of the environment in the round. As I have indicated, issues with regard to domestic aviation are a minor part of the total problem that we need to address. That is why the Government stressed in their White Paper and are stressing in general terms that we need the comprehensive approach embodied in government policy.
Baroness Dean of Thornton-le-Fylde: I am trying to be pragmatic about this and to respond positively to the noble Lord, Lord Beaumont, who has tried to be helpful too. The White Paper that the Government published on 16 December is still being considered by so many, and clearly by the department itself. I thank the Minister for putting some meat on the bones that was not there at Second Reading. In those circumstances, I do not intend to pursue Amendment No. I today, but I shall press the others. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Dean of Thornton-le-Fylde Baroness Dean of Thornton-le-Fylde moved Amendments Nos. 2 and 3:
Page 1, line 21, at end insert—
"( )the effectiveness of the measures in reducing emissions;
( ) the impact of the measures on employment and investment;
( ) the impact of the measures on consumers and business;
( ) the competitiveness and prosperity of the United Kingdom aviation industry;
( ) the competitiveness of the United Kingdom economy;"
Page 2, line 2, leave out sub-paragraph (i) and insert—
"(i) communities:"
On Question, amendments agreed to.
Baroness Dean of Thornton-le-Fylde Baroness Dean of Thornton-le-Fylde moved Amendment No. 4:
Page 2, line 4, leave out "air users" and insert "the United Kingdom air transport industry"
The noble Baroness said: I entirely accept the point made by the Minister. I beg to move.
On Question, amendment agreed to.
On Question, Whether Clause 1, as amended, shall stand part of the Bill?
Baroness Dean of Thornton-le-Fylde: In view of the earlier comments of the noble Lord, Lord Beaumont, I shall not pursue the matter today.
Clause 1, as amended, agreed to.
Remaining clauses agreed to.
House resumed: Bill reported with amendments.

Mink Keeping (Prohibition) (England) Order 2004
2.33 p.m.
The Parliamentary Under-Secretary of State, Department of Environment, Food and Rural Affairs (Lord Whitty)The Parliamentary Under-Secretary of State, Department of Environment, Food and Rural Affairs (Lord Whitty) rose to move, That the order laid before the House on 20 January be approved [8th Report from the Joint Committee]
The noble Lord said: My Lords, I shall begin by providing the House with some background. The Destructive Imported Animals Act 1932 regulates the keeping of certain non-indigenous, imported animals that are considered destructive to either our biodiversity or legitimate human activities.
The controls specified in the Act have subsequently been applied to other species by orders issued under the Act. Currently, such orders apply to the muskrat, grey squirrel, coypu and non-indigenous rabbits.
The order reapplies the keeping prohibition, as set out in the 1932 Act, to mink. The controls provide my department with powers to regulate those who are, exceptionally, permitted to keep mink in England and to enforce the stringent security standards required to prevent mink escaping from captivity.
Prior to 1997, mink-keeping orders had a five-year duration, but by the time the 2000 order was laid, plans were well under way for the Fur Farming (Prohibition) Act 2000. However, as the Bill was still to be approved by Parliament at that point, it was decided that the order should have a three-year duration to ensure that effective controls remained in place until the proposed fur-farming ban came into force.
My department now proposes the adoption of a non time-limited order, in line with the other orders issued under the Act. Therefore, the effect of the order is, first, to prohibit the keeping of mink, except under licence, throughout England, including all off-shore islands; and, secondly, to continue to disapply the obligation of occupiers of any land to notify the department of the presence of mink on that land. The latter is clearly not reasonable nor practical because the feral population of mink is regrettably now so widespread in mainland England.
I hope that that explains distinctly the importance of the legislation and the need for such an order. The number of licences under the order will be extremely small, but it is necessary to establish the strict prohibition on mink-keeping as a means of promoting the wider objective to maintain and enhance England's biodiversity. I beg to move.
Moved, That the order laid before the House on 20 January be approved [8th Report from the Joint Committee].—(Lord Whitty.)
Baroness Byford: My Lords, I thank the Minister for explaining the order, which I regard as a tidying-up measure. I also accept, as the Explanatory Notes state, that the provisions will be compatible with the convention rights, as defined in Section 1 of the Human Rights Act 1998. However, I understand that the order deals only with England. Will the Minister tell us whether the Welsh Assembly and the Scottish Parliament will be passing a similar order in due time, or whether they have already passed one?
As the Minister said, mink pose a real threat to wildlife, including waterfowl, nesting birds and fish and game businesses. It is estimated that the water vole population declined by an estimated 88 per cent—a terrible figure—between 1989 and 1998, and that they are now part of the biodiversity action plan species. In Scotland, serious breeding failures have been experienced on seabird breeding sites and concern has been expressed by salmon fisheries.
However, the whole saga of the ban on milk farming—sorry, I mean mink farming. We are coming to the subject of milk later. The saga of the ban of mink farming is a disgrace. Defra was very slow about producing a scheme in the first place, which was later to be found defective, and initially sought to appeal against its defeat in the High Court. The Second Reading in this House was on 19 July 2000. In her winding up speech, the noble Baroness, Lady Hayman, reassured noble Lords that compensation would be made available and that the Government understood the need to,
"move as fast as possible on the matter".

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Later the noble Baroness said:
"I understand the feeling about the need for a speedy response".—[Official Report, 19/7/2000: cols. 1155–6]
In November 2000, the Fur Farming (Prohibition) Act 2000 became law. In August 2001, consultation on the draft compensation scheme came out. In January 2002, the compensation scheme—statutory instrument 2001/3853—came into force. In March 2002, a second order came into force giving interim payments of £40 per female animal, which was made six weeks later. I have the chronology here submitted to me by the NFU, giving details of no fewer than 19 stages, bringing us up to early March 2004, and stating that Defra has rejected concessions on the interest that is due to be paid as there is no legal obligation to pay it.
The net result of all those years of disgraceful delays is that farmers stand to lose out on about two years' worth of interest on their compensation, which is in effect a penalty for successfully challenging the fairness of the original scheme. The NFU has raised the issue with me, saying that,
"any fair-minded observer would regard that as a most unreasonable penalty on claimants, given that the original order was found by the court to be defective. Nor do we think that a court would be impressed by this treatment of the human rights of the claimants. It would be truly ironic for persons whose businesses have been terminated not because they posed any threat to human or animal safety, but because in the Government's view their sector of farming offended 'public morality', to be treated in a manner which fell short of the high moral standard which Ministers insisted should be applied when justifying this legislation to Parliament".
The Government ought to be ashamed of themselves. It is unlike the Minister not to try to encourage us along the way. I hope that he will be able to allay my fears. Two years have passed, and these farmers—although, it is true, there are not many of them—are unreasonably being held up in getting the compensation paid. I understand that there is no law stating that the Government have to give interest on the compensation that has been delayed but I hope that the Minister will accept that this position is unfair and cannot be allowed to continue. I hope that he will be able to confirm to me that this matter will be resolved immediately and not in weeks, months or years. However, I support the order overall.
Lord Addington: My Lords, I do not have much to say about the order, other than that we approve of its basic thrust. Mink, whether released from cages by incompetent or negligent farmers or by misguided and somewhat idiotic animal rights protestors, have done tremendous damage to our wildlife. Is the Minister in a position to tell us what is being done to reduce the number of mink? Does he know about that scheme and will he make that information available by writing to me?
I do not like the idea of keeping mink as animals for fur, but it was a legal activity. If we are not going to encourage farmers to have small accidents with fencing, surely they should receive payment. To follow up the point made by the noble Baroness, will the Minister give an assurance that the cases of farmers
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who are acting properly will be dealt with as quickly as possible? Will he also let us know what is being done about the control of mink? It has been put to me that the most effective control of mink on a riverbank is an otter. It is about twice the size and does not take kindly to the competition. If we could hear some good news about otter introductions we may well have the best natural control.
Lord Whitty: My Lords, on the last point, and indeed on the first point made by the noble Baroness about the effect of the feral mink population on other wildlife—as she said, it is particularly disastrous on the water voles—it is clearly necessary for us to enable feral mink to be trapped and otherwise caught. A significant effort to suppress mink numbers and to assist the water vole population is being made by a combination of the Environment Agency, English Nature, local wildlife trusts and other conservation organisations. As the noble Lord, Lord Addington, said, there is a healthy side to otter repopulation. They are taking hack some of the land that the mink had acquired for itself and in those areas mink numbers are reducing significantly. I expect to see that continue as the otter population recovers. I am not able to give overall figures. I am not sure that we have overall figures in relation to the mink population. All we know is that, as a result of misguided and inadvertent releases, they are a serious problem.
As far as this order is concerned, clearly this is the residual part of what was a very substantial control over mink farming as well as over keeping mink for other reasons. It now relates only to special licences for very few conditions where people keep mink for other purposes. The number of such licences in England has been round about four a year. We are not talking about a vast regime. As far as the position in the devolved administrations is concerned, the Scots re-established an order in January. It is not quite the same as this order as it has a five-year limit but it is in the same direction. As I understand it, the Welsh arc minded to follow our lead, although it is likely that their process will take somewhat longer and it will be the summer before the new order comes into play there. Of course it is a matter for them.
As to the rest of what the noble Baroness said, which was also alluded to by the noble Lord, it has nothing to do with this order. This order is under the 1932 Act and the ban on mink farming, which led to the compensation scheme, was under the 2001 Act.
A compensation issue does arise. The Government came forward with some difficulty with a compensation scheme after substantial discussions with the industry in one form or another. That scheme was then overruled by the courts. We are now in the process of trying to reach agreement on a replacement form of the scheme that does not suffer from the same legal disadvantages which the court found at that stage. We have not yet reached agreement, but I hope that we will be able to promulgate such a scheme as soon as possible. However, it will not necessarily happen with the agreement of everyone affected by it. However, that is nothing to do with this order. Whatever strictures the noble Baroness may have

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for the Government, they do not, as I think she will accept, apply to this order. I commend the order to the House.
On Question, Motion agreed to.

Milk Development Council (Amendment) Order 2004
2.45 p.m.
Lord Whitty Lord Whitty rose to move, That the draft order laid before the House on 26 January be approved [7th Report from the Joint Committee]
The noble Lord said: My Lords, this order amends the Milk Development Council Order 1995 to change the procedure that the Milk Development Council currently undertakes to obtain its statutory levy in the specific—not general—circumstances where producers do not provide the required production details. The MDC is an executive non-departmental public body funded by a statutory levy on milk producers in Great Britain. This is collected either from milk purchasers or, where farmers sell directly to the public or their purchasers decline to collect the levy, directly from the farmer. This order applies to the latter group—the so called Case B producers.
Currently, the MDC must first seek information on the volume of production when establishing levy liability for such producers. This is needed to establish the amount clue and to pursue an action in civil courts where the levy is unpaid. Where a producer fails to provide such information on request it is a criminal offence, punishable by a fine. As this is often less than the unpaid levy, it provides insufficient incentive for the producer to provide the information. Even after a successful prosecution, the criminal courts have no power to order the provision of the information necessary to calculate the levy so that the MDC may have to initiate those same proceedings all over again.
Although the number involved in this is small, the MDC has to spend 2.5 per cent of its total levy money in pursuing non-payers. It is not an inconsiderable amount but is a burden on everyone who complies with the legal requirements.
The order follows a model established by the Potato Industry Development Council when faced with a similar problem and simplifies the arrangements by requiring Case B producers to forward their production figures to the MDC within one month of the end of the production year. If they fail to do so, the MDC will be required to estimate production. That estimate will be communicated to the producer who will have 28 days to submit production details, which may be used in place of the estimate.
The preferred method for estimating production would be from actual production figures held by the Rural Payments Agency. As the RPA is currently developing a database that will hold such information, this is essentially a future option. The second method, on which we are relying for the immediate period, is to estimate production based on the milk quota held by a producer at the end of the quota year. The RPA can
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currently provide that data. Where UK deliveries have exceeded UK quota and where it is likely that an individual's quota will be an underestimate of their production, the MDC will be able to increase the estimate to allow for the quota overshoot, but by no more than 10 per cent.
I hope that noble Lords will agree that this is a sensible amendment to address the small but, regrettably, growing real problem of non-payment by some Case B producers. We have the support of organisations that could be affected. I commend the order to the House.
Moved, That the draft order laid before the House on 26 January be approved [7th Report from the Joint Committee]—(Lord Whitty.)
Baroness Byford: My Lords, I thank the Minister for moving and explaining the order, which we support.
It must make sense to end the current system whereby the council has to take through the criminal court producers who do not declare their production figures. As the Minister said, that is a costly process. The court cannot order the defendant to provide the information required but only fine him for not doing so. I understand that of the approximately 20,000 dairy farmers in Great Britain, only some 22 refused to comply in the year 2002–03. However, it is still regrettable that some 2 per cent of the money that is raised by the levy has to be spent on trying to get the money from them.
I have one or two questions for the Minister. When the order was taken through another place on 10 February 2004, my honourable friend John Whittingdale asked the Minister for information about the action plan approved in the summer of 2003. The Minister indicated that he would write to my honourable friend. Can the noble Lord, Lord Whiny, tell me about the "wider issues" to which Alun Michael referred? What timetable is established to move such action forward?
The Minister is no doubt aware that subsidised milk has been available to school children between the ages of five and 11. Free fresh fruit is now available. Does the Minister consider that that may result in school milk being squeezed reflecting a downturn in milk currently available in schools?
I turn to my questions regarding the CAP reform proposals. I am sure I am not the only one who is concerned about the long-term viability of dairy farmers. Milk producers have been receiving uneconomical low farm gate prices. I believe that the current rate is about 18p per litre. Following the CAP reform proposals, English farmers are likely to be put at a competitive disadvantage. Their single farm payment would initially be paid on a hybrid basis and be replaced with a 100 per cent flat rate scheme by 2012.
Does the Minister accept that under the English system the dairy premium will be worth considerably less than in the rest of the United Kingdom? It has been estimated that this might be as much as 10p per litre over its expected life span before modulation and other deductions, compared with 20p per litre in Scotland

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and Wales. Is the Minister aware of those concerns and of the effect that the measure may have on the current level of levy collected?
How do the Government intend to deal with farmers who have cross-border holdings? It is unclear how these producers will be treated as conceivably they may be subject to different arrangements in the two regions. Given that the UK is essentially one quota ring fenced—the exceptions are the Highlands and Islands of Scotland—quota may be held by one person operating two units on either side of the border. That could create complications in terms of calculation of entitlements. How many such producers are likely to be affected?
Severely disadvantaged areas are mostly those areas of the UK that were already receiving special support measures prior to the 1975 less favoured areas directive. The application for the single farm payment in England provides for a distinction in the level of area based payment to be made in the SDA and non-SDA areas. Bearing in mind the difficulties in establishing the regional payment ceiling, Defra has made an initial estimate for the SDA land of an ultimate area payment rate within the range of £65 to £85 per hectare and for the non-SDA land a payment rate within the range of £210 to £230 per hectare. Is the Minister confident that such split arrangements will work and are fair?
I refer briefly to bovine TB. According to the Government's consultation document on preparing a new strategy on bovine TB, on average the number of reactors per TB incident in 2002 was 4.7 compared with 1.9 in 1997. The public expenditure associated is forecast to be more than £71 million for 2003–04. Does the Minister accept that, unless those outbreaks of bovine TB are brought under control, the very ability of certain parts of the UK to produce milk will be seriously under threat, and that some of our best pedigree herds could be lost? Will he also touch on the whole question of the position in which tenant farmers find themselves? Their quota is linked to the land and requires the landlord's consent. Concern has been expressed, as the deadline for selling quota comes on 31 March.
I apologise slightly to other noble Lords for having gone a little wide of the order, but it is about a levy. Our worry is that, unless serious consideration is given to how the dairy farmers are able to compete at the moment, the very level of levy about which we have talked may not be there in future. However, it is our pleasure to support the order.
Lord Addington: My Lords, I shall be somewhat briefer. The noble Baroness had a slight problem on the previous order when she confused "milk" and "mink". I have a note scrawled rather cheekily on the side of my briefing that says, "Mink bad, milk good. Do not confuse". It was not even my note, either.
Given the increased importance of the market to dairy farmers, do the Government plan to introduce a code of conduct for retailers to specify that milk may not be sold below the cost of production?
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I have one point about the council itself. Although we have heard nothing bad about it, it is appointed by the Minister. If the levy is increased and the way in which it is paid is extended, surely it would be better if the people who paid the levy at least had some say in appointing members to the council.
Lord Grantchester: My Lords, I declare an interest as a dairy farmer in Cheshire, and a director of Dairy Farmers of Britain, a milk co-operative. The order makes a very sensible administrative amendment to reduce the time and cost of pursuing non-payers. A quite disproportionate cost is spent pursuing some 240 objectors out of 20,000 dairy farmers, resulting, I believe, in only 12 eventual fines.
In the run-up to the last review, there was much criticism from dairymen that the MDC was spending its money in the wrong areas, such as research on husbandry and milk production methods, and not addressing the real issues of the dairy industry—supply-chain issues, marketing structures and innovation. However, dairy farmers appreciated the benefit of having a statutory levy payable by all producers, so that there are not "freeloaders". The amendment is to be commended, as the money raised—£7.5 million annually—will not be wasted on chasing payments.
The MDC wisely appreciated how it had to improve its perception to farmers, and has now set up a regional structure to communicate more effectively, help to inform farmers with market intelligence, and help to grow the market. Farmers find it regrettable that the dairy trade chose not to continue match-funding the money raised from producers to make milk promotion more effective. However, the change in the Milk Development Council's activities has brought it continued and increasing wide support throughout the industry for its activities.
Lord Whitty: My Lords, I am grateful for the support from all parts of the House for the order. As both my noble friend Lord Grantchester and the noble Baroness said, the number of recalcitrant producers is very small, yet they cost the MDC and therefore all farmers in the dairy sector an inordinate amount of money. We hope that the order will bring that down very substantially and allow the money to be spent on those priorities that the MDC and the industry have identified. My noble friend was also correct to say that the recent review of the MDC, although revealing some criticism, led to a plan of action and regional activity in terms of research, promotion and organisation that is by and large supported throughout the dairy sector.
The noble Baroness strayed somewhat wider than the order. The MDC is involved in wider aspects of the problems of the dairy sector. Those problems do not relate only to recent periods or CAP reform. There are serious structural problems in the dairy sector of which I have been made aware while I have been in this job and I have tried to bring the industry together to discuss them. It is not the easiest agricultural sector in which to establish a degree of consensus.

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However, there is a recognition that the present situation and the even worse situation regarding the farm gate price is not sustainable. That view is shared by the processors and the retail trade as well as the producers. There is not entirely a consensus over what can be done about it, but we are moving towards that with the efforts of the dairy forum, which I chair, and hope that it will be largely driven by the industry's own realisation that they need to do more.
At the end of the day the dairy problem is one of supply and demand, that supply normally outstrips demand at two levels and that the quota system and the workings of the EU support system have made that imbalance worse. That has led to serious problems in the industry.
Regarding the other matters raised by the noble Baroness, Lady Byford, the welfare milk system, whereby a broader range of health goods is available to schools, depends on how effectively the milk sector is ensuring that more schools take up the milk option. There has been an increase of late and it is important that the potential for providing fresh milk—and fresh fruit and vegetables—is taken up by as many schools as possible.
Further detailed work is being carried out in Brussels on aspects of CAP reform and further discussion is taking place. If all parts of the United Kingdom decouple then the dairy premium will eventually be lost in the single farm payments in any case. Wales and Scotland will maintain more of the historic element but that will not be dairy-specific, whereas England is moving away from the historic element to a regional area system. That will provide the agricultural sector as a whole with a more or less level playing field with which to face its market rather than a historic pattern of subsidies which seriously distort the market.
Therefore, we believe that those dairy farmers who can face the future, provided some of the structural changes take place in dairy farming, should be in a position to meet their markets under the system that we have adopted for England. Clearly, there are cross-border issues. One of the consequences of devolution and of the ability of the devolved administrations to take a different view, is that different systems will exist and some anomalies will be caused at the borders.
The SDA system in England produces some anomalies, but they are not as great as if one included all of England within one system. A number of representations have been made to us on behalf of the beef industry and, to some extent, the dairy industry, that we should look at those issues. But I believe that the system we proposed in principle a few weeks ago will provide a firm basis for agriculture to move forward—facing the market rather than relying on subsidies and providing, as a result of the terms of those support systems, a better environmental outcome for the countryside.
The dairy industry has particular problems, including TB, which, as the noble Baroness rightly says, is by far the most worrying matter for the industry and in terms of animal disease in general. It is one in which a good deal
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of resources at the operational, veterinary and research levels are being provided in the UK and it is important that we get it right. At present, TB is a very big problem for the dairy sector. However, this order deals with a much smaller issue, where recalcitrant farmers will be brought into play to the benefit of the industry as a whole.
On Question, Motion agreed to.

National Health Service and Overseas Visitors
3.5 p.m.
Baroness Boothroyd Baroness Boothroyd rose to ask Her Majesty's Government whether they will consider the case for tighter regulations relating to the free treatment on the National Health Service of overseas visitors.
The noble Baroness said: My Lords, the announcement by the Government of a review of the current regulations on the eligibility for NHS treatment of overseas visitors is warmly welcomed by me. Given that the rules were established as long ago as 1989—long before the current era of mass migration, cheap fares and global information—I believe it is time that they were updated.
Obviously, emergencies occur and people fall sick while visiting this country and, for those, we must do what we can morally and legally. But we cannot be expected to deal with those who come here for the deliberate purpose of using the health service at the expense of the British taxpayer. Unfortunately, it seems to have become known that, if you can reach the UK, you can present yourself for a check-up, testing and treatment.
I recommend to your Lordships a splendid documentary produced by the BBC, which gives chapter and verse on how those from many parts of the world are able to operate the system and, at the same time, sets out the almost impossible situation in which overseas patient officers find themselves in recovering the costs of that treatment or pursuing those costs when patients fly home immediately afterwards. Overseas patient officers have a very difficult and sensitive task to perform, and we should all wish them well in the job that they do.
A debt recovery agency, CCI Legal Services, claims that some £50 million to £200 million is lost to the NHS every year through the non-recovery of charges. I fully understand that the Minister could not confirm that figure when I raised it in a Parliamentary Question. When asked about it, John Reid did not dispute the figure but said:
"The debt amounted to hundreds of millions of pounds".
The department cannot give a figure because, regrettably, it does not collect information at the centre. That, to me, is a disturbing revelation.
Hospital managers are required to collect data on a host of issues from ethnic monitoring to performance targets. So why cannot the Government find out and state publicly how much is spent by the NHS on the

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treatment of overseas patients? I submit to your Lordships that it is, after all, public money and it should be transparent and accountable. I trust that the new regulations will mean that public resources used in this way will be made accountable by the Department of Health.
Information provided for me by friends in the medical profession illustrates case after case where we have become a soft touch. I shall not weary your Lordships but shall mention only a few. There is the case of the Libyan lady who was admitted to hospital for two-and-a-half weeks and left owing £8,000. She was so ill on arrival that the consultant, my friend, asked her son, who was there at the time, how she had managed to travel in that condition. The son replied, "I flew with her into London yesterday, brought her to the emergency department this morning, knowing she would be taken care of for free. You see, I know the ropes".
A Mexican lady spent most of her hospitalisation in intensive care and left with a bill of approximately £40,000. So incensed was my friend that he wrote to her in Mexico asking for some repayment of the debt. For his trouble, lie was heavily criticised by the Race Relations Board and accused of racial harassment.
An American gentleman, another person who came here without health insurance, spent time in intensive care. His wife left him and flew back to the States. The amount owing at the time of repatriation was £56,000 for treatment, with an additional £5,300 for the cost of returning him home, paid for by the NHS trust.
I believe that we are all aware—I have been aware for some time—of the Nigerian lady with a history of difficult pregnancies who came here, it is believed deliberately, to give birth. She herself was seriously ill, as was her baby. Subsequently she left the country leaving her baby still in our care, and it is claimed, with a bill in the region of £500,000.
This is but a snapshot, and there are very many more eases, where families fly sick relatives in from overseas, claiming that the relatives have lived with them for years and therefore are entitled to free NHS beds. I am certainly pleased to learn that those loopholes will now be closed.
I turn to the attitude of the British Medical Association, which I find somewhat puzzling. Although the BMA has been in consultation on this issue for some months with the Department of Health, when the new rules were announced, John Reid was accused by the chairman of the BMA's international committee of "using a sledgehammer to crack a nut when we don't know the size of the nut". My response to the chairman is that those in the medical profession know the size of the nut. It is those working in the profession itself, many of them BMA members who frequently experience the problem and provide people like me with information to raise Parliamentary Questions and debates such as this because of their concern.
Contrary to some myths being spread, fearing that doctors will be required to police the new system, John Hutton, the Health Minister, has made it clear to the BMA that doctors will not be expected to interrogate patients about their eligibility for treatment. That is the job—and will remain the job—of overseas patient managers. As I understand it, the BMA has a longstanding commitment to support principles and measures to minimise fraud and deliberate abuse of NHS resources. That being the case, I trust the association will welcome the strengthening of the regulations.
I turn now to those doctors compelled to speak out because their departments are at crisis point because of sexually transmitted diseases. A doctor at Doncaster Royal Infirmary claimed that the hospital was getting as many HIV cases in three months as it expected to get in two to three years and was at saturation point. A consultant at John Radcliffe Hospital, Oxford, NHS trust expressed similar frustrations while the Leicester Royal Infirmary evidenced a rise in its HIV-positive patients of 61 per cent over the past three years, with more than half the patients having resided in the UK for fewer than the required 12 months. Quite properly the department has made it clear that those undergoing treatment will continue to receive treatment. That is as it should be. Will the Minister say, once the new regulations are in place, how they will operate in relation to new entries into this country?
In recent times there has been much comment about the enlargement of the European Union and the demands that may be made on our social structure of families seeking to settle here. At the eleventh hour I see that the Government have built in some restrictions. But what of the demands made on the NHS? Are there any plans to allocate further resources to the health service in selective areas of settlement to meet the needs of families, particularly the young and the elderly from where the demand will be greatest? I never understood why we could not adopt the line of our major partners in the European Union, such as France, Germany, Italy and Spain, in seeking and obtaining a derogation, or some form of quota system, thereby making it easier to assimilate and to give effective aid and support to new residents. I can conclude only that those who did the initial negotiations for Britain must have been half asleep at the time.
I have never taken out a personal health plan; I rely entirely on the NHS. But of course, like many of your Lordships, I have insurance when I go abroad, not expecting the taxpayers of my host country to fork out for any treatment I might need. Is there not some way that visitors coming to this country could be made aware that they will be expected to pay for treatment, with their costs being met by either personal insurance or by their own department of' health?
I raise this issue because, like millions of other citizens, I rely on the health service and am proud of that service, and I seek to protect and cherish it. Equally, we in this country are proud of the way that

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we have demonstrated a welcome to the troubled and destitute. It would be a great pity if the goodwill of this nation were stretched to breaking point. I welcome the proposals to introduce new procedures and look forward very much to the Minister's response.
3.16 p.m.
Baroness Howells of St Davids: My Lords, I am sure your Lordships will agree that this is a very important and opportune debate. I thank the noble Baroness, Lady Boothroyd, for securing the debate.
I have always believed that tolerance hangs by a thread. I am concerned that some sections of the media have demonstrated the sort of xenophobia I thought we had got over in Britain after the Macpherson report. The media attack overseas visitors who are bent on exploiting our NHS with allegations of "health tourism". The press have mounted a sustained attack on immigration, with campaigns against "benefit tourists" and asylum seekers that allegedly jump council house waiting lists and take advantage of our very good National Health Service.
We, as decision-makers, have to be very careful not to breathe oxygen into the fire of intolerance, however good our intentions. The brunt of this hysteria will be borne not only by visitors coming to this country, but also by ethnic minorities who live here legally and those currently seeking asylum.
I should like to bring some calm words into this hysteria by recounting a story I heard some time ago. I owe the dates for this story to the noble Lord, Lord Tebbit, and would like to register my thanks to him for his good memory. President Reagan met the Japanese Prime Minister in 1987. I believe that the president asked the Prime Minister why it was that the Japanese economy was thriving at that time. The Japanese Prime Minister responded that it was due to the fact that Japan kept its employment market and welfare services open to its own people and closed to everyone else. That was hugely controversial at the time, as your Lordships may remember.
Today—2004—the economists tell me that the Japanese economy is not doing very well. But we all know that the multi-ethnic American economy is at the top. I would say, "So much for the closed shop doing better".
I should like to set out some facts. Accusations of "health tourism" should, I believe, be replaced with heart-felt thanks for the help British patients receive from economic migrants.
Home Office figures for 2003 show that 44,443 health care staff are from countries outside the European Union. They were all issued with work permits last year, a 27-fold increase on the number 10 years ago. The vast majority are nurses—more than 27,000 were recruited in 2003. The chief source is the developing world, with the Philippines topping the league last year with permits issued to 8,749 health workers; closely followed by India, with 7,367, and
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South Africa with 4,422. In the UK, the numbers coming from overseas are still a tiny proportion of the 1.3 million NHS staff, but they are a vital element to the health service, and it cannot afford to do without them. The BMA says:
"Overseas medics have a vital role to play. It takes 10 years to train a GP, and about 15 years to train a consultant, so even if the government is pouring money into recruitment now, the effects will not be seen for many years".
There is no doubt that we exploit overseas workers. We should be grateful that they are rescuing us from the failure of 10 years ago to invest in our home-grown health service.
We are right to promote our tough asylum and immigration laws, but we should be more reticent as a nation about trumpeting the success of the growing army of immigrants who perform an invaluable role in the health service. The efforts of these overseas staff counter the charge that immigration is imposing an unacceptable burden on our most valued institutions. This salutary statistic offers a stark and irrefutable snapshot of the vital role played by foreign workers in this country. It is a similar story in so many other sectors of the modern British economy. Immigrants fill every role in the health service, from doctors and nurses to pharmacists, radiographers, and occupational therapists. They work where British professionals are often reluctant to work, in traffic-choked inner cities and grimy housing estates. They perform the essential caring tasks that their British counterparts are reluctant to take on.
I will provide one example. I do not know this young man, but he is close to someone who I know very well. We will call the young man Sam. He is American. He works as a marketing consultant, and his work has taken him to Asia, Australasia and Europe. He lived and worked in London for years, before moving to Sydney and then back to London. He was about to go on holiday two weeks ago when he became so ill that he went to a London hospital. Within hours, he was diagnosed as being HIV positive and as having pneumonia. He was isolated and cared for night and day by the staff. He later found out that his diagnosis was AIDS in its late stages. His CD4 count is in the low 30s. He has been advised by his carers not to travel, and certainly not to fly.
I am pleased to say that the treatment received by Sam under the National Health Service means that he is now making steady progress, and he is out of hospital and about to start a drug trial. But for the care that the young American received these past few weeks from our NHS, he would now be dead. Incidentally, I am told that two of his nurses are South African, one is Nigerian, and one of his doctors is a New Zealander. He is making great progress; he is out of hospital and will be working again and paying, I am told, many pounds in taxation into the British economy. I hope that when we consider the case for tighter regulations we will bear in mind people such as Sam, a visitor to this country. I am very proud of my country and am pleased that we can send him back to his mother having benefited from a service free at the point of need.

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What about the casual labourers who work in the UK? When I think of those poor, unfortunate cockleshell-pickers in Morecambe Bay the other week, I wonder whether the same journalists who lambasted so-called health tourists would have been so benevolent had all those poor Chinese people survived but required medical care. We benefit from sharing employment in the NHS with overseas visitors as we benefit from the NHS sharing its care with those unfortunate enough to call upon its aid while visiting, living or working in our country.
When I was very young, I read Matthew 14:16–21, in which the disciples say:
"We have here but five loaves, and two fishes".
Jesus commanded the multitude to sit on the grass, and they were able to feed everyone. It states that,
"those that had eaten were about five thousand men, besides women and children".
I often think of the mother who remembered to pack a lunchbox for the carrier of the five loaves and two fishes, and, more importantly, the young person's wish to share. I may be old-fashioned, but I feel that only good can come from sharing and being open. Let us dwell on that before we start restricting and closing; we could possibly be the losers.
I ask the Minister to assure this House that its laws will remain fair and just at all times.
3.27 p.m.
Lord Rea: My Lords, with the leave of the House, I shall say a few words in the gap, as few speakers have put down their name to speak this Friday afternoon. Of course, that has nothing to do with the importance of the topic. I received my briefing rather late yesterday, so I missed the 6 p.m. deadline to add my name to the list of speakers.
I do not claim any expertise on this topic. As a general practitioner, I tended to treat all those who were even temporarily resident in the UK, especially if they were relatives of permanent residents, and I referred them if they needed specialist help. A few of those were then asked to pay for their care, depending on how zealously the hospital gates were guarded by the administration. The primary care of visitors is very difficult to police, and most GPs adopt a flexible approach. They certainly do not want to take on the gateway function of entry to the National Health Service itself, in addition to their current appropriate role of acting as a gateway to secondary or hospital care.
The position of the BMA, which has been quoted by most of those who have spoken, is clear. In its submission to the Department of Health in October last year on the proposed changes to the 1989 regulations, it expressed,
"concerns about the difficulty, in some cases, of distinguishing between genuine and fraudulent claims and the need for some degree of flexibility in operating any new system".
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It further expressed concerns,
"about the health care needs of very vulnerable visitors to the UK who were unable to pay for essential treatment such as the healthcare needs of failed asylum seekers awaiting deportation".
That is very important.
Quite apart from any humanitarian concerns, failed asylum seekers who have untreated TB represent a hazard not only to their own health but also to the general population with whom they come into contact, and they are a very high-risk group. Leaving infectious diseases untreated can become problematic for wider society.
Until a patient has been registered and examined, it is not possible to establish such a diagnosis. That is a strong reason for allowing a very flexible approach. In its briefing, the Department of Health states:
"At present there are no specific arrangements relating to charging for primary care, although GPs have been given guidance on how to respond to overseas visitors who seek to register with them".
In fact, that guidance is not new: it was most recently updated at least four years ago.
The guidance is complex as to who is and is not entitled to primary care. The response of most GPs and practice managers is to be flexible, as the BMA suggests. The BMA states:
"It is the BMA's view that doctors should not, in any way be charged with the task of determining whether individual patients would qualify for free NHS healthcare in the UK. In fact, following the BMA's expressed views on 30 December, the Department of Health has confirmed that doctors will not have to determine eligibility for treatment under the new arrangements for controlling access to free NHS care, a move welcomed by the BMA".
I hope that my noble friend will be able to confirm that.
This is not an easy subject. By tightening up the rules, there is a danger that injustice may be done, often to the most vulnerable. I congratulate my noble friend Lady Howells on pointing that out so movingly. Thus, there is a potential danger of infection remaining undetected and untreated, to our detriment.
3.32 p.m.
Baroness Thomas of Walliswood: My Lords, this subject has attracted a lot of interest in both Houses recently. The noble Baroness, Lady Boothroyd, is to be congratulated on her persistent and energetic referral to this topic on a number of occasions, including Starred Questions in October and December.
I agree that this is an important topic that should not be neglected. I also agree with the noble Baroness, Lady Howells of St Davids, that we must be careful not to carry regulation in this very delicate area too far. It would not be in accordance with our tradition over many years of generosity towards people coming into this country, nor is it the clinical tradition of UK health services to be excessively keen to reject people coming to the health service in perhaps acute need of care.

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I am pleased that the Government are updating the 1989 regulations. But since they were issued, the number of different categories of people coming to this country has increased enormously. There are entitled and unentitled people coming from the EU perhaps accompanying visitors who are entitled, but who try to claim care on the NHS although they are not entitled. There are asylum seekers. There are students and their families. There are migrant workers and their families.
It is worth noting that NHS employees coming from overseas—to whom the noble Baroness referred—cannot get free NHS care for their relatives if they live abroad, although sometimes the overseas NHS workers attempt to seek such care for free.
There are also people who come here on six-month visas. They register with the local GP in the way discussed by the noble Lord, Lord Rea, and they try to use NHS hospital services. They are ineligible to receive free hospital care, but if they work in, say, a local bar and pay their tax and national insurance, they then become eligible for free hospital care like any other taxpayer.
So the situation is very difficult for hospitals, since it is at that level that the major costs are incurred. I am informed that not all chief executives treat this problem with the same degree of seriousness, either because they are not aware of the number of cases, or because they are aware of the difficulty of collecting the debts incurred if they treat patients free of charge. Not all know the size of the nut, to use the words of the noble Baroness.
My supplementary question to the Question tabled by the noble Baroness on 22 October last concerned the depth of the Government's understanding of the numbers involved, the costs and levels of debt recovery. However, that question went unanswered.
The hospital of which I was once a non-executive director has an efficient system for managing the reception, assistance, treatment and ultimate repatriation of its non-eligible overseas patients. Perhaps that is because the hospital is sited virtually next door to one of the major London airports. Despite the best efforts of the hospital team, current debt this year is a substantial sum. I shall not give the actual figures because I believe that they may not be public knowledge at this stage. Nevertheless, that debt is a small proportion of the total debt of the hospital at this stage in the financial year, when debts and credits are being balanced. However, one of the problems is that this debt is very difficult to recover. Only around 50 per cent of the debts incurred by overseas patients are ever recovered.
There are some serious individual cases. One woman has arrived here and, through no fault of her own, is now costing the hospital something like £20,000 to treat. The hospital does its best to deal with such cases. Sometimes, for example, it is cheaper to send applicants for free NHS care back to their country of origin with a medical attendant than it is to
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treat them in the hospital. On rare occasions, that is how the problem has been dealt with—but only if patients are well enough to be treated in this way.
However, the hospital errs on the side of clinical propriety. The clinical staff would rather treat patients than risk their condition worsening. That is done despite the high costs of certain treatments—a point not mentioned by the noble Baroness in her opening speech—in particular those for HIV and TB where the drug costs are high. As the noble Baroness, Lady Howells, said, that is part of the tradition of the NHS, and it is a part of the tradition that I hope we will not lose. It would be shameful if we were to send away from our shores people who were in immediate danger or who had acute illnesses, whether or not they should have got here in the first place.
Is it the Government's intention to tighten up the performance of hospitals in monitoring the numbers of such patients, their cost to the hospital and the rate of recovery of debt? It will be difficult to legislate or to table regulations on a subject on which the Minister, when we discussed it in a Starred Question and I asked about the size of the problem, was clearly unable to respond. It would be unfortunate if the measures taken to redress the ills to which the noble Baroness referred in introducing the debate were out of proportion to the size of the problem. I hope the Government will reassure the House that in carrying forward this valuable review they will nevertheless have an eye to proportionality.
3.40 p.m.
Earl Howe: My Lords, the noble Baroness, Lady Boothroyd, is to be congratulated on having introduced a debate which raises particularly interesting and sensitive issues which I suspect, if we were truthful, some of us who are believers in the National Health Service ethic would rather not have to confront. But I am glad that she has made us confront them because while the founding ideals of the NHS may not have changed since 1948, we cannot ignore the fact that the world around it has changed a very great deal. We live in a global society; and if an essential and very expensive service, which is entirely funded by the British taxpayer, is being offered and delivered to large numbers of people who do not live here, then we need to take a conscious decision: is this or is this not something we are prepared to live with?
I am sure that I am not the only person who found themselves in sympathy with both John Reid and John Hutton recently when each of them, on separate occasions, voiced their disquiet about abuse of the system and the need to protect taxpayers' money. The trouble is that none of us exactly knows how much taxpayers' money is being lost in this way. The published estimate of £50 million to £200 million is not one which the Government say they can sign up to. But that in itself highlights how unsatisfactory it is that we are debating this issue and have nothing more to go on than anecdotal evidence.

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We read a lot in the press about health tourism. There are occasionally leaked reports, such as the one last year from Newham Hospital. A manager of one of the major hospitals in south London recently spoke out about "horror stories" happening all over the country, with her own hospital alone seeing 1,400 health tourists last year. A report last May by the Centre for Policy Studies suggested that some health tourists run up bills of over £50,000. In that report, one senior consultant estimated that 20 per cent of patients on his inner-city ward were asylum seekers, refugees and foreign nationals who were not entitled to NHS treatment.
If you talk to hospital doctors, they will tell you that there are three main categories of health tourists: those who come here to take advantage of childbirth facilities; those who need kidney dialysis; and those who come here looking for transplants of organs or bone marrow. The cost of treating a bone marrow transplant patient, I am told, can exceed £100,000. So if it is happening on a large scale we are indeed talking about significant sums.
Let us suppose that the total bill from health tourism is of the order of £200 million. I may be eccentric but, having had the privilege of serving in government, I cannot bring myself to dismiss this sort of expenditure in an airy fashion as de minimis. It is, in absolute terms, a large amount of money for us to be writing off.
But what is needed is some hard evidence. Until the scale of the problem has been measured reliably, I do not think that any government initiative to curb health tourism will he taken as seriously as perhaps it ought to be. There is a great deal of cynicism around. Health tourism is regarded by certain doctors as just a scare story which Ministers like to bring out of the cupboard when it is politically expedient to do so.
But I have to say that I am with Ministers on this one. Subject to one reservation, the proposed changes to the rules for charging overseas visitors for NHS care announced last month are, I think, perfectly reasonable. In fact, more than one of the changes would actually extend eligibility for free treatment to people who cannot get it at the moment. That is fine. My reservation relates to failed asylum seekers who, through no fault of their own, cannot be returned to their country of origin. There are quite a number of these people, particularly from countries in Africa. More thought needs to be given to this group, because many of us would feel very uncomfortable denying basic health to such people.
The only other element of controversy in the consultation exercise was in relation to primary care and whether the regulations should apply there as well. A press release from the Department of Health in December said that changes to the rules on primary care treatment would be announced in January, but, so far, I have not seen that announcement.
The main issue, though, is not so much what the regulations will contain as how they are to be policed. Doctors are quite firm about this: they do not want to
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be policemen or surrogate immigration officials. I believe that that is entirely reasonable. They should not be asked to act in either of those capacities. But my worry is that nobody else will be acting in that role either. Overseas patient managers exist in each hospital but their job is primarily one of recovering costs from patients once they have been treated rather than questioning them on their arrival. The Government really need to focus on how to help these managers perform their inquisitorial role and how to help them become more effective in their debt recovery work.
It was very interesting hearing John Reid saying in January that foreigners who use the NHS will in future have to pay for their treatment in advance. That is quite a bold idea, but it is rather difficult to see how it could be brought into effect without significant extra work for doctors. Indeed, the Government's assertion that the rule changes will not involve any significant extra work for doctors is at odds with their admission that they cannot quantify the scale of the problem. I should be glad if the Minister could say something about this idea when he replies.
There are some who believe that the answer to all our prayers lies in the introduction of identity cards. Margaret Edwards, the NHS director of access, and Richard Douglas, the NHS director of finance, were reported as having written to John Hutton stating that ID cards were a sine qua non of any credible proposals to clamp down on health tourism. The implication here, as they were quoted as saying, is that we will need to wait until 2007 when ID cards are due to be phased in before we can start asking GPs to become gatekeepers on their patients' eligibility for free healthcare. Quite what GPs think about this idea I do not know. Aside from that, we need to be a little careful here. ID cards are likely to be given to British nationals, but eligibility for free healthcare on the NHS is based largely on whether an individual is ordinarily resident in the UK. Relying on ID cards would mean that, for example, British nationals not fulfilling the residence criteria would be able to claim free care when they are in fact disentitled. If we are to restrict access to the NHS by means of a card, we need a card that is dedicated to that purpose—in other words, a health entitlement card.
Health tourists are defined strictly as overseas visitors who unlawfully obtain free medical treatment. Most of us bridle at the thought that our health service is seen by some people abroad as a soft touch, and it is that kind of exploitation that I have been talking about up to now. But there is an extra dimension to the issue when we come to think about certain categories of people who are legally entitled to NHS care—namely, legitimate immigrants. The problem with these people is not that they are health tourists—for they are not—but that in many cases they present a serious public health risk, and their sheer numbers, if we are not careful, threaten to overwhelm the system.

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Yesterday I paid a fascinating visit to the Health Protection Agency in Colindale which laid on a very interesting presentation on HIV/AIDS. By far the largest proportion of new cases of HIV/AIDS over the past six to seven years is attributable to immigrants from the continent of Africa. Last year's total was the highest ever at more than 7,000. A similar story can he told about TB. More than 50 per cent of TB in this country occurs in people born abroad, most of whom have arrived in the past ten years.
If we look at what is going to happen on 1 May, when the European Union gains 10 new member countries, we can see that many millions more individuals will suddenly become entitled to free NHS care. We do not know how many people will choose to enter the UK from the accession states. The Home Office estimates between 5,000 and 13,000 people; others think that the numbers will be much higher. However, we need to be aware that seven of the 10 accession countries have growth rates in HIV/ AIDS that are among the world's highest. A UN report published last month suggests that the disease will actually threaten development prospects in eastern Europe and the CIS. In Estonia, upwards of one out of every 100 adults is estimated to be carrying HIV, a threshold above which efforts to turn hack the epidemic have failed in many other countries. Most of those who carry the virus are aged between 15 and 40. They represent the hulk of the labour force and the age group most likely to seek employment prospects in more developed parts of the EU.
The UK is unusual in not requiring an HIV test prior to immigration. I wonder whether the time has not come to look again at the idea of screening. Perhaps the Minister would comment on that point. It is late, but hopefully not too late, to address what may become a significant call on NHS resources.
Our debate is not just about where the boundaries of the law should lie, but what our moral obligations are as a rich, developed nation; and what is practicable for us to try to do within existing NHS resources. We cannot bury our heads in the sand and hope for the hest. I hope that the Government will listen and that they will act, not simply in terms of new regulations, but also by offering answers to the practical questions that I and other noble Lords have raised today. Those questions are the ones that, in the end, really matter.
3.52 p.m.
The Parliamentary Under-Secretary of State, Department of Health (Lord Warner): My Lords, I thank the noble Baroness, Lady Boothroyd, for her interest in this important subject and for her support for the action that the Government are taking. I know that it is a matter of great concern to her and other noble Lords that NHS money is spent on providing treatment only to those who are entitled to receive it free of charge and not to those who are not. I reassure your Lordships that that is no less important to Her Majesty's Government. That is why new amendments
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to the existing regulations governing charges for hospital treatment will, subject to parliamentary approval, come into effect on 1 April. Those amendments are intended to achieve exactly what the noble Baroness and other noble Lords have requested; namely, the tightening-up of regulations so as to minimise the scope for abuse. I thank the noble Earl for his support for that approach.
Before I turn to eligibility for free NHS treatment, let me acknowledge the thoughtful words of my noble friend Lady Howells, in particular her figures for, and recognition of, how much the NHS owes, and will continue to owe, to people from overseas who work within the NHS at all levels. They pay their taxes and they help to run a service on which many of us rely.
The noble Baroness, Lady Thomas of Walliswood, drew attention to the complexity of the categories of overseas people in this country relating to when they may seek NHS treatment. It is a common misconception that entitlement to free NHS services is based on nationality, tax or national insurance contributions. That is not the case. Rather, it is based on whether someone is, as the noble Earl, Lord Howe, said, ordinarily resident in this country. Section 121 of the NHS Act 1977 gives the Secretary of State for Health powers to establish charges for NHS services provided to anyone who is not ordinarily resident in Great Britain. Those powers have been used in relation to hospital services by means of the NHS Charges to Overseas Visitors Regulations 1989. Those regulations define an overseas visitor as anyone who is not ordinarily resident in the UK. They also set out a range of exemptions from charges and clearly place the responsibility on the local NHS body providing treatment to establish whether any of the exemptions apply. That has always been the position; it is a responsibility held at the local level to collect the money where the exemptions do not apply.
There are two ways in which a patient can be eligible for free NHS treatment: either because he or she is ordinarily resident here or because, although an overseas visitor, he or she is nevertheless exempt from charges. It has long been the case that a national of a country other than the UK could be entitled to free NHS hospital treatment in certain circumstances.
We recognise that much has changed in the 15 years since the current charging regulations first came into effect. Patterns of employment, of migration and of lifestyle have changed. We realise that the charging regulations need to be brought up to date. That is why we have been reviewing the operation of the charging regime through discussion with frontline staff operating the system, and with clinicians and others directly involved. It has become clear that unintended loopholes have developed over time, and that action is needed to close them and return eligibility for free NHS hospital treatment to the "ordinarily resident" basis it was always intended to have.
Following a full public consultation last year, on 30 December my right honourable friend the Minister of State for Health announced changes to tighten up the charging regulations. Those changes will come into

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effect on 1 April, subject to parliamentary approval, and will deal with the following abuses. First, it will deal with people who take advantage of their own exempt status to bring their families over for short visits just to obtain NHS hospital treatment, particularly in order to give birth. In future, they will need to show that the family are living here with the exempt person on a permanent basis. Secondly, it will deal with people who use the fact that they are coming here on a short-term business trip to get free hospital treatment. In future, they will need to be employed by a UK-based company. Thirdly, it will deal with people who have been living here for more than 12 months but are here illegally. The 12-months residency exemption will apply only to those who are living here legally. Fourthly, it will deal with people who live and work overseas, but think that they can just pop hack here for a few weeks to receive free NHS treatment whenever they feel like it. In future, anyone who has been working away for more than five years will not be entitled to free treatment unless they can show they are returning here to live permanently.
We are also moving to end the current confusion about the status of overseas students by introducing a specific exemption for them, and to make life easier for British pensioners who choose to spend part of the year living in warmer parts of Europe.
The charging regulations apply only to hospital treatment. As the noble Lord, Lord Rea, said, the situation is different for services provided by general practitioners. Primary care trusts have a duty to ensure that arrangements are in place to provide primary medical services for all persons in their area. There is no residency or nationality requirement. For their part, GPs have discretion as to whether they accept any application to join their patient list, including from overseas visitors. If a GP accepts an individual on to the list, he or she is then obliged to provide services free of charge. The Government expect GPs to exercise their discretion with sensitivity and with due regard for the circumstances of each case. Regulations allow persons who are in an area for short periods to register with a GP as a temporary resident. Existing guidance steers GPs towards accepting overseas visitors as NHS patients, if at all, as temporary residents.
However, we believe that the time is now right to look at this matter afresh. On 30 December, my right honourable friend the Minister of State, John Hutton, confirmed that we would shortly be outlining proposals for aligning primary care with the hospital charging arrangements. No decisions have yet been taken and any proposals for change will be subject to consultation.
I know that the noble Baroness, Lady Boothroyd, has been particularly concerned about reports that large numbers of overseas visitors obtain free maternity care for which they are perceived to be ineligible. Our review of the charging regime has made it clear that that is indeed a significant issue for some parts of the NHS. However, I again emphasise that under the current arrangements not everyone is ineligible just because they are from overseas. There
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are a number of exemption categories that can apply to pregnant women, so they are doing nothing wrong. Nevertheless, we recognise that this is a problem and we have been taking steps to tackle it. As I have already mentioned, we are changing the charging regulations to close the visiting relatives loophole. This will mean that charge-exempt overseas visitors will no longer be able to bring their wives here for a carefully timed visit to ensure that they are here at the time of their confinements. Rather, they will have to show that their wives are actually living permanently with them in the UK before their exemption can be extended to them.
However, there is also a problem with women being able to get into this country in the very late stages of pregnancy. Officials have had discussions with British Airways and the Board of Airline Representatives in the UK to talk about what steps might be taken to improve matters. In fact, most airlines have policies on carrying women in late pregnancy, but there is some evidence that not all airlines are as thorough as they could be in applying them.
As a result of those discussions, British Airways has reissued its guidance to all its check-in staff, and BAR UK has undertaken to remind all its members of the importance of adhering to whatever carriage policies they have in place and, in particular, to IATA guidelines on this. This reminder was issued last month.
However, no matter what steps we take, there will still be women who manage to get here and just turn up in an accident and emergency department actually in labour. I am sure that noble Lords will agree that in such cases the NHS has no choice but to provide the necessary maternity care to avoid risks to mother and baby. As I have said before in this House, and will say again and again if necessary, the NHS is at its heart a humanitarian service. I am sure that all noble Lords recognise that in these circumstances we are dealing with the lives of children about to be born. Nevertheless, we are clear that, even in such cases, if the patient is chargeable, that charge must be levied and pursued as far as is reasonable.
Concern has also been expressed about imported infections and immigration. This country, like others, is affected by the global epidemiology of infectious diseases. There is no difference between the noble Earl, Earl Howe, and me on that. That is why the Cabinet Office is currently leading a cross-departmental review of imported infections and immigration. The review aims to establish the facts about the impact of immigration on public health and NHS expenditure. It is considering all relevant issues, including health screening, and will propose solutions should action be required. The review is continuing and no decisions have yet been taken, so I cannot say any more at this stage. However, I can say that I recently made a presentation about HIV/AIDS policies in this country to an EU meeting. In the course of that, I heard the concerns that were being expressed by health ministers from CIS countries and eastern Europe.

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However, we must not forget that we have an imperative duty to protect public health. That is why the treatment of certain communicable diseases, such as tuberculosis, is free of charge to all, irrespective of their status. It is far more important that we limit the spread of such diseases by early diagnosis and comprehensive treatment than that we risk putting people off coming forward for treatment by requiring them to pay for it.
The situation is not, however, quite the same where HIV/AIDS is concerned. Here the main risk to public health is from onward transmission by people who do not yet know that they are infected. HIV is not communicable via the airborne route in the same way that TB and other diseases are. The most important issue, therefore, from a public health perspective, is to encourage the early diagnosis of HIV so that patients can be advised on the steps they need to take to protect themselves and others. It is for that reason that diagnostic testing for HIV and the associated counselling is free of charge to all, irrespective of their status. However, treatment of HIV is complex, does not provide a cure and is therefore lifelong. There is not, as a result, the same justification for providing treatment of HIV free of charge to all, which is why it is chargeable unless the patient is otherwise exempt.
I turn now to the arguments that the NHS will be swamped after the 10 accession countries join the EU. We already have reciprocal health agreements with six of the 10 EU accession states which allow for treatment to be provided on exactly the same basis as their residents will be entitled to once they are part of the EU. So we are talking about a new entitlement in relation to only four countries. Visitors who access NHS services for emergency or planned care are paid for by their home countries, so no net cost is involved in relation to the NHS. If working here and ordinarily resident, they are entitled to NHS care; but they are also paying taxes. As an aside, I should say that one or two places in this country would not mind being swamped with Polish dentists if that would help with some of their local services.
Noble Lords raised the issue of whether money was adequately provided at the local level to cope with areas with a large intake of people from overseas. As we have said many times, primary care trusts decide local priorities regarding their local community needs. They distribute 75 per cent of NHS resources, and these resources are increasing by 7.5 per cent annually in real terms over a five-year period. This provides a fair degree of leeway for people to cope with changing circumstances in their local communities.
I should like to reassure my noble friend Lord Rea on some of the issues he raised, one or two of which were raised also by the noble Earl. On continuing care for failed asylum seekers, the Minister of State's announcement on 30 December made it clear that treatment already underway when it is decided that someone is here unlawfully will continue no matter how long the patient may have been here. We have never suggested either that doctors will have to police the system; that is the role of the overseas visitors manager. I shall return to that in a few moments.
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I know it has been suggested that the NHS does not bother to enforce the charging regulations. I think that that is unfair to overseas visitors managers who put a huge amount of time and energy into identifying and pursuing payment from overseas visitors, and are very successful in doing so. I am grateful to the noble Baroness, Lady Thomas of Walliswood, for acknowledging that that was the case in her area.
Of course, there are other NHS trusts where the regulations are not so strictly enforced because of staff pressures, or because the regulations themselves may have fallen somewhat into disrepute. However, we must hold on to the fact that it is down to the people at the local level to have systems in place that enable them to obtain information about people who are not exempt from charges and ought to be paying, and to collect those resources for their local health service's need. They are in fact letting down people at the local level if they do not put those systems in place.
To reassure the noble Baroness, Lady Thomas, I can say that when the amended regulations are in place we will be carrying out a major programme within the NHS to raise the profile of the overseas visitors managers and to ensure that NHS bodies, particularly trust chief executives, understand that the regulations place obligations on them which they must fulfil and in which, no doubt, their auditors will take an interest. NHS trusts do not actually have a choice in charging overseas visitors; the regulations require them to do so, and there is a task for the Department of Health in making sure that that is properly understood. We will also be revising all our patient literature for overseas visitors, to help NHS trusts in getting the message across to overseas visitors that they should expect to have to pay for hospital treatment.
Before concluding, I should like very briefly to say a few words on the figures that have been bandied about in the press about so-called health tourism. My right honourable friends the Secretary of State and the Minister of State have both said publicly that we do not know how much money is being spent on chargeable overseas visitors. We know anecdotally that the NHS tells us that this can be significant in some—I emphasise "some"—of our bigger inner city trusts and those near airports and major entry points to the UK. We have to be proportionate, however, in the way that we demand information from people at the local level. We are shifting the balance of power in that area regarding people's responsibility to collect that information.
In conclusion, I hope that what I have said will help to reassure noble Lords and in particular the noble Baroness, Lady Boothroyd, that the Government take very seriously indeed the issue of overseas visitors abusing the NHS and are taking a range of steps to deal with it. I do not pretend that the changes we are making to the regulations will resolve all the problems overnight, nor will we ever get to a situation where the NHS never has to treat someone in need who should pay but does not have the means to do so. There will always be hard cases where the NHS has to put the needs of a seriously ill patient before whether or not they can pay. It is always important to bear in mind

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our healthcare obligations to asylum seekers under international law, our obligations to our fellow members of the EU, including the 10 new accession countries, and with the 30 or so countries with whom we have reciprocal healthcare agreements, and which benefit UK visitors to those countries if they fall ill.
Those obligations mean that there will always be—as there has been in the past—a proportion of overseas visitors who are not ordinarily resident but who are taken ill while they are here and receive healthcare to meet their needs and our international obligations. Those people are visitors in need, not health tourists.
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Nevertheless, I am convinced that, given time, the changes we are proposing to the charging arrangements will make a real difference and improve public confidence.

University of Manchester Bill [H.L.]
The order made on 3 March relating to the commitment of the Bill to an Unopposed Bill Committee was vacated and the Bill referred to the Examiners.
House adjourned at twelve minutes past four o'clock.