Howarth and Beith on the Constitutional Reform and Governance Bill

• [Oct 20] David Howarth (Cambridge, Liberal Democrat): ' . . WHAT is really wrong with the Bill, however, is what it does not do and its lack of ambition, given the size of the problem . . '

I agree with the vast majority of what Dr. Wright has just said-except for one thing. I think that we are already in a constitutional moment and that the current crisis is very serious, requiring a better reaction now than this Bill. I am afraid that it is inadequate to the present circumstances. There is nothing in it specifically bad or obnoxious, but nearly all of it needs improvement-some of it radically. What is really wrong with the Bill, however, is what it does not do and its lack of ambition, given the size of the problem. As the hon. Member for Cannock Chase pointed out, it does nothing to change the system of election to the House of Commons, which is not just corrupt and unfair but, as the hon. Gentleman began to explain, politically disastrous. It fails to get rid of the undemocratic absurdity of a wholly unelected second Chamber-a House of patronage-and, as Kelvin Hopkins said in an intervention, it fails to do anything about the extreme centralisation of power in this country, which still remains after the devolution settlement. It fails to do anything to prevent big money control of our politics, and it even fails to remove the possibility of political interference in the criminal justice system.

There is a real crisis in British politics, but although all of us in the House know about it on a personal level, but we do very little about it. It is a crisis of confidence in politics that threatens the cultural basis of democracy itself. Extremist parties are attracting support, and cynicism about politics and the people in politics is rife. I believe that confidence in Members of the House of Commons is now down to 14 per cent. The media are the only real political power in the land, but the media's own commercial difficulties mean that they use that power for increasingly shallow populist ends.

Over the past few weeks, I have been wondering whether the position is even worse than that. We live in a society that is obsessed with celebrity, and what we now see is the growth of an expectation that politics is, or should become, a kind of celebrity activity. We are seeing celebrity candidates for public office, not only in the United States but here. We are seeing TV celebrities elevated to ministerial office and places in the House of Lords. We are seeing political innovations, proposed or already in place, which, while they may appear superficially attractive, are in danger of turning into concessions to celebrity politics. Primaries, I believe, involve that danger; leaders' debates involve that danger; and elected mayors involve that danger-although I should perhaps add that the newly elected mayor of Bedford won his place without being a celebrity.

The serious question is, are we allowing a new system of government to develop out of the constitutional moment in which we find ourselves? Does the system that we are allowing constitute a kind of rule by the famous? The new system needs a name, and were we to give it a name it would be not a democracy but a doxocracy: the rule of celebrity. A new and urgent constitutional question about which the Bill does nothing is what we should do about that form of politics. One view is that we should simply go with the flow, give in to the celebrity politics that is developing and institutionalise its elements, such as primaries; but I believe that that will not end well. The sheer superficiality of celebrity politics will lead in the end not to greater engagement as its proposers hope, but to disappointment and to even more cynicism.

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David Drew (Stroud, Labour): I am sure that, like me, the hon. Gentleman regularly visits schools, and that, like me, he is pleasantly surprised at how interested young people are in politics-not party politics, perhaps, but issue-based politics. What they always tell me is that they have a thirst for knowledge: they want to know more about what we do in Parliament, and about what Government do. Does the hon. Gentleman agree that that is where we fail absolutely in this country? We have not engaged in real citizenship education at all.

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David Howarth: I do agree, but that is a consequence of the great boundary that we have developed between people in politics and people not in politics. I believe that the position will become worse if we follow the celebrity politics route, along with the assumption that being in politics means having to be a different kind of person from everyone else.

The hon. Member for Cannock Chase mentioned the expenses crisis. I think that we need to mention it, but one of the aspects of it that strike me as dangerous is that, just as celebrities in show business are expected to have some kind of physical perfection, political leaders are now increasingly expected to have moral perfection, and that is simply impossible. We are not gods; we are only people. In both forms of celebrity, we have developed a form of airbrushing. Photographs of celebrities are airbrushed, and before freedom of information we airbrushed what we were doing here. Exposure of that has, I believe, been fundamentally damaging. The alternative approach is to reject the whole idea rather than going along with it, and to aim to tear down the barrier that I see developing between politics and people outside politics. That is a difficult route, however, because it is one that the media would automatically oppose.

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Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour): I am following the hon. Gentleman's interesting speech carefully. I do not think that he meant that the exposure of expenses itself had been damaging. It is what has been exposed that has been damaging. I share, as I am sure he does, the view of my hon. Friend Dr. Wright that, although this has been a very difficult period, we could not go on as we were.

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David Howarth: I thank the Secretary of State for correcting me. What I meant was that we had been airbrushing the situation and that that had been exposed, quite rightly. We should not have been airbrushing it along the way.

What we need to do is think about how to persuade more people to participate in politics in order to break down the barrier-not just in the sense of having their views heard, although that is very important, but in the full sense of having responsibility for decisions and taking part in them. That means a decentralisation of power far more radical than what we have taken on so far. It also means putting barriers in the way of those who wish to control politics through money, which is incompatible with a democracy in which many people take part on an equal basis; and yes, it does mean representative bodies that reflect the political views of the people who are represented. The Bill does not address that either.

The hon. Member for Cannock Chase was right to mention electoral reform, which is central to change in politics and, in particular, to the changing relationship between people in politics and people outside politics. A House of Commons that simply does not reflect the political views of the population will never command much respect. We have involved ourselves in the idea that the only purpose of a general election is to choose a Government. According to current doctrine, a general election is not about reflecting the political views of the public. The trouble with that view is that it loses all credibility when the winning party wins barely over a third of the votes. When the supporters of the Government are outnumbered by nearly two to one, it is not surprising that the Government are unpopular from the day on which they take office, remain unpopular after that, and are seen by the population as being alien to their own political views. We have to move away from the present system.

It is said that first past the post at least allows us to get rid of the rascals, but there is a fundamental problem with that. It allows us to get rid of an individual rascal, but only by voting for a party with which we may fundamentally disagree. The cry "Throw the rascals out" therefore cannot work simultaneously for individuals and for parties. The system fails because it is trying to do too much at once.

We also need to get rid of the idea of safe seats, because it is safe seats that lead us down the path to iniquity. We need competition, but we need a system that allows competition and allows the number of safe seats to be reduced, but does not allow us to give up the idea of the proportionality of the entire electoral system to public views. There is such a system: the single transferable vote multi-Member seat system. It puts power in the hands of voters, not party machines. Interestingly, in Ireland 40 per cent. of Teachda Dalas who lose their seats lose them not to members of other parties but to members of their own party. The whole point of that system is that it is possible to throw out individual rascals while retaining general proportionality and support for parties.

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Ronnie Campbell (Blyth Valley, Labour): Is the hon. Gentleman suggesting that there should not be a constituency element to the role of a Member of Parliament?

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David Howarth: The STV system retains the constituency element; it just has larger constituencies. They would be about the same size as American congressional districts, or perhaps even a little smaller.

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Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour): Does the hon. Gentleman think that the Irish system of proportional representation has produced better government-better economic management and less corruption-than in the United Kingdom?

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David Howarth: Until very recently it has certainly produced better economic management. As for the recent catastrophes, as someone once said, it is not a good idea to decide precedence between a louse and a flea.

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Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour): Will the hon. Gentleman give way?

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David Howarth: I do not think it is a good idea to discuss this in detail now as the jury is still out. [Interruption.] Yes, the Speaker of the Dail is probably not the best person to talk about in these circumstances.

It is noteworthy that in the Bill the Government have completely ignored all the problems to which I refer and fail to engage in the debate. The Government's own proposals on reform of the electoral system of the Commons are mysteriously absent from the Bill. There was a proposal, which the Secretary of State has discussed, for the possibility of recall of existing Members of Parliament-a proposal that the Government stole from us. That proposal is not in the Bill. The Secretary of State has explained that it is very difficult to think about and that it will take some time. I do not think it is particularly difficult, however, and I believe we can get a move on with it if there is sufficient will and open discussion among the parties.

The Prime Minister recently put forward the proposal to hold a referendum in the next Parliament on moving to the alternative vote system, but that too is not in the Bill. The AV system is not a wholly proportional one. It can produce some rather eccentric results, but at least it is a preferential system, so from my party's point of view it is arguably a step in the right direction. The question the Government must answer is why that is not in the Bill. It is not a complicated system for them to design. I just put this thought to the Government: if provision in this Bill for a referendum in, let us say, autumn 2010 were to pass into law, it would be very difficult indeed for an incoming Government of any other party to repeal it in time to stop it happening, so why do the Government not include such provision now in this Bill?

The position in terms of the House of Lords is similar. If the Secretary of State is right-which I think he is-that Members in all parts of the House accept that we should move to a predominantly, or, as we would prefer, a wholly, elected Chamber, why do we have to wait until the general election to make a start on that? The Secretary of State says we need all parties to put that proposal in their manifesto as that is needed to overwhelm, in some kind of argumentative way, the obstruction of those in the other place who do not wish there to be any change. I cannot see how that is so. They already know the positions of the parties. They all know what will happen at the next election. It is inevitable that there will be the result that the Secretary of State talks about, so what is the point in waiting? Why do we not now try-we might not succeed-to include in this Bill a move to a more democratic, or a wholly democratic, House of Lords, which an incoming Government from another party would find very difficult to repeal? We have heard, however, remarks from Conservative Members that imply a certain amount of delay. I think we should be acting now, in this Bill, to make sure that such delay is not effective.

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Philip Dunne (Whip, Whips; Ludlow, Conservative)

The hon. Gentleman is ranging widely on the omissions from the Bill. Does he agree that another omission is the failure to overcome the lack of fairness shown to British citizens who vote when they happen to be living, either temporarily or permanently, overseas? We are now one of only four countries in the whole European Union that have restrictive rights that disfranchise millions of our citizens overseas. Should not those people be taken care of in this constitutional reform Bill?

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David Howarth: I would not argue as broadly as the hon. Gentleman does, and this might not be the right Bill in which to address that issue, but I think there is a problem, especially in terms of British citizens who work for international organisations, who seem to be discriminated against in an unfortunate way.

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Michael Wills (Minister of State, Ministry of Justice; North Swindon, Labour): I wish to pick up on a couple of specific points. We are well aware that there is a specific problem for British citizens who work for international organisations. We are looking at it, and we hope to be able to make some significant progress. It is quite complicated, however, not least because given the vast number of such organisations, there are issues about whether they should all be included. I accept that there is an issue, however, and we are considering it.

Turning to the point made by Mr. Dunne, he well knows that the House has regularly looked at the voting restrictions placed on British citizens who choose to live overseas. Of course most of them are able to vote in this country, but if they stay outside the country for longer than a specified time, restrictions apply, as they do elsewhere as well. The hon. Gentleman therefore has not quite got that right, and I shall write to him to correct his misunderstanding.

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David Howarth: I thank the Minister for that intervention, and especially for his initial comments, which amount to considerable progress on an important issue.

Let me make one final remark on the House of Lords. I would not want an opportunity for real progress to be thrown away because the Secretary of State is inherently conservative and the Conservative party is hesitant and wants to impose a first-past-the-post electoral system on any future elected House of Lords. That would be a disaster given that we could be making real progress.

There is an enormous amount to do in terms of the centralisation of power, but for now will the Government not at least commit to some small concessions? One thing they could do is implement the original intention of the Sustainable Communities Act 2007, which was that local government would be able to require central Government to declare what central Government spend in a local area so that negotiations can then take place on what should be done with that money. I gather that what is currently happening is that central Government interpret that Act as meaning only that central Government tell local government what local government are already spending, which of course completely undermines the whole process. Cannot the Government simply reverse their control-freak stance-which they revealed yet again last week-on the internal governance of local authorities which forces them to choose between a limited range of unsuitable Whitehall-based Government structures?

The draft Bill included extensive provisions on removing the power of the Attorney-General to control decisions about particular cases-about whether a particular person should be prosecuted or not. In my view, it made unacceptable exceptions to that idea by talking about a national security exemption, but even this limited concession has now disappeared entirely from the Bill before the House tonight.

The Secretary of State has not really explained what has happened. The current situation is entirely unacceptable, and I notice that the Parliamentary Assembly of the Council of Europe is now of a similar view. It is unacceptable for a Government Minister-a politician-to have the power to undermine the prosecution of, or even to decide to prosecute, individuals in particular cases. We all know about the controversy regarding the BAE Systems case and so on, but I do not want to discuss individual cases; I just want to talk about the principle of whether a Minister should have that sort of power. The hon. Member for Cannock Chase mentioned the separation of powers, and this seems to me the most obvious instance where the principle of the separation of powers is being violated. Such decisions should be exclusively for professional prosecutors.

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Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour): The hon. Gentleman raises an important issue, which I have always seen as one of fine judgment and balance. We asked both Houses to establish a Joint Committee on this Bill-that was in addition to the specific investigations being carried out by the Select Committee on Justice, the Public Administration Committee and others. The Joint Committee on the Draft Constitutional Renewal Bill, which involved both Houses and all parties, concluded that the legal and political role should be retained for the Attorney-General. It also said:

"Given our conclusions in Chapter 3, we question whether there is a need for legislation in respect of the Attorney."

I accept that we must keep this matter under review, but I hope that the hon. Gentleman will at least accept that the reason why what was included in the original draft Bill is not included in this Bill is that we accepted a recommendation from the Joint Committee.

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David Howarth: The Joint Committee was far from unanimous on that point, and the Justice Committee report clearly went the other way.

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Andrew Tyrie (Chichester, Conservative)

As a matter of fact, what the hon. Gentleman said is a big understatement. The Joint Committee had to produce a minority report, making it clear that a sizeable proportion of its members agreed with the reports produced both by the Select Committee on Constitutional Affairs and the Justice Committee. They both concluded that the current arrangements for the Attorney-General, whereby he has both a political and a prosecuting role, are unsustainable.

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David Howarth: I am grateful for the hon. Gentleman's intervention, because that is precisely what has happened. I do not think we should give way to a Joint Committee report that is plainly more reactionary than the centre of gravity of opinion in this House. It is possible to design arrangements so that there is a supervising Minister who has some say in overall policy on prosecution, but the idea that individual cases can be influenced by Ministers strikes me as being beyond the pale.

Let us consider the civil service aspects of the Bill, on which, like the Conservatives' spokesperson and the hon. Member for Cannock Chase, I welcome the basic principle. There is, however, a minimalist feel to the way in which the idea of the "civil service Act" is being implemented in the Bill. What has happened to the idea, mentioned earlier in the debate, that special advisers should not be able to exercise Executive power and instruct civil servants? The Secretary of State says that there might be exceptions to that-I cannot think of any such circumstances that have led to good outcomes in the past. Even if there are exceptions, should not the Bill put in place the presumption that special advisers should not be able to do those things and provide for an open, transparent procedure-not an Order in Council-to make the exemptions clear and open in Parliament? Why should only selection into the civil service from the outside world-this is how I read the Bill-be subject to open and fair competition and merit? What has happened to the idea that promotion within the civil service should also be exclusively by merit and open competition? On a lesser but still important point, what has happened to the provision in respect of GCHQ, which was included in a previous draft of the Bill but has now been lost? Finally, and crucially, why does the Bill contain no legal duty on Ministers to respect civil service impartiality?

The treaty ratification aspects of the Bill have been discussed extensively, but the conclusion that I have drawn from examining the Bill and listening to the debate is that what the Bill provides for is almost purely symbolic; it is not a real change. That is because the Government-this is the central issue with which the Public Administration Committee, which the hon. Member for Cannock Chase chairs, is grappling-have a complete stranglehold on what we get to vote on in this House. If a purely negative procedure is to be used in respect of treaties, this House will never get to vote on a treaty when the Government do not want us to do so. What the Bill says about the House of Lords is that the Government can simply, by fiat, ignore what it says on a treaty. In any case, clause 23 contains a general get-out clause allowing the Government to evade the entire proposed structure.

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Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour): It was my experience as Foreign Secretary, when I regarded it as offensive to this House and our democracy that Parliament had no formal, proper role to agree or to veto treaties, that led to this part of the Bill being laid before the House. This provision is not, in any sense, supposed to be symbolic. We are, of course, open to arguments as to how it could be improved, but I should say that never before has there been-as there will be if this Bill is enacted-power for this House properly to veto a ratification if it so judges.

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David Howarth: I am glad that the Secretary of State is open to further suggestions-the obvious one is to move to use the affirmative system, as opposed to the negative procedure, in this House. That would at least ensure that a vote took place in this House, even if a debate did not.

The Bill is very disappointing on prerogative powers. The document that the Government issued last week is possibly the most complacent that I have ever seen come out of government. Basically, it lists the prerogative powers that are known to exist and then says, "Apart from one or two that the Government have already covered, there is nothing wrong with the present system and it is a very good idea that Ministers should have all these powers." It simply makes a mockery of the Prime Minister's promise to entrust

"more power to Parliament and the British people."-[ Hansard, 3 July 2007; Vol. 462, c. 815.]

Like the Secretary of State, I would have much more strongly preferred to see something concrete about war powers in the Bill, rather than merely a proposal about consideration of a draft resolution of the House. That was rightly described by the Public Administration Committee as leaving

"too much discretion in the hands of the Prime Minister."

The Bill contains nothing about the Dissolution of Parliament and nothing about many of the other powers listed last week. Crucially, it contains nothing about the power to appoint the Prime Minister, which remains in the mysterious official channels of ways and means. That is not acceptable in modern democracy; this House should openly elect our Prime Minister, after a general election. The prerogative is simply arbitrary power dressed up in mediaeval clothes, and it is a means for the Government to avoid democratic scrutiny. We should be discussing a general provision to shift all prerogative powers on to a statutory basis or to this House, and the Government should have to argue for any exceptions to that.

May I just briefly mention the public order provisions, because I was disturbed by part of the debate about that earlier? I am happy that the provisions that exist now on protest near Parliament are being repealed, but the Bill replaces them with a regulatory regime that could be abused. I am thinking about, for example, the power at large to confer discretions on senior police officers and the power to impose a limit on the maximum number of protestors without there being any limit to that power. When this Bill reaches Committee we will need to examine carefully what those provisions are meant to do and, if necessary, restrict their remit.

On the judiciary, as the Secretary of State said, the effect of the Bill is to take the Prime Minister out of the loop on judicial appointments. I suppose that that is also largely symbolic, since the Prime Minister is replaced with the real power in the land-the power behind the throne all the time-the Lord Chancellor.

On human rights, I have no objection to tidying up the anomalies to do with the devolved Governments. However, if the Government are in a frame of mind to tidy up the Human Rights Act 1998, I urge them to consider not only the Bill promoted by Mr. Dismore on foreign civil servants, which he has mentioned before, but, rather more importantly, his Bill on human rights, which would ensure that Government contracted-out services, which are only technically in the private sector, are included in the scope of the Human Rights Act.

The financial provisions of the Bill on the Comptroller and Auditor General and the National Audit Office are mostly harmless, but there is nothing in the Bill to deal with the ludicrous lack of scrutiny to which the Government are subject in this House before they spend public money. Our method of scrutiny takes place almost entirely after the fact. We in this House have less say in advance of Government spending than a parish council does about what that council spends. Since the reality of politics is that expenditure is policy and policy is expenditure, we are reduced to merely a spectator in government. It seems to me that serious reforms are required to the way in which Parliament relates to the Government on money issues. The Bill, as it does with so many other issues, simply tinkers lightly with the far edges of a very serious problem.

A Second Reading debate is supposed to be about the principle of a Bill, and the principle of this Bill appears to be to do as little as possible about as much as possible in a limited way. The big issues that face us about the legitimacy of the political system and the future of our democracy have been ignored. If I am right that we are already in a constitutional moment-in a serious political crisis-that is simply an inadequate response. I urge the Government to think again about what they want to achieve through the Bill and about whether it is right to introduce such a pathetic little Bill at this stage and carry it over into the next Session. It might be a better idea to take the whole thing away and to return in the next Session with a serious attempt at reform.

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Alan Beith (Berwick-upon-Tweed, Liberal Democrat): It is always a pleasure to listen to Kelvin Hopkins, even when he is struggling with a sore throat, from which I hope he soon recovers.

Before reading the Bill, I had a look at the explanatory notes-I usually do it the other round-and found to my surprise that they were full of aspirational comments from the Green Paper of July 2007, stating that the background to the Bill included the Government's goals

"To invigorate our democracy...To clarify the role of Government, both central and local...To rebalance power between Parliament and the Government, and give Parliament more ability to hold the Government to account...and...To work with the British people to achieve a stronger sense of what it means to be British."

That all sounds very fine, but it does not seem to have a great deal to do with the Bill that we now have before us. I appreciate that that Green Paper also related to some of the other things that the Government have done. I celebrated one of those with them only last Friday with the opening of the Supreme Court-a happy occasion. That is an important symbolic change that also has some practical significance and one that I very much welcome. That measure was introduced only after my Committee, the Justice Committee, had persuaded the Government to get it right following the back-of-an-envelope job with which they started, but all credit to them for carrying it through.

When I looked from those grand aspirations to the Bill, I saw a Bill that had first been stripped of some of the important issues that were raised in 2007, such as the role of the Attorney-General, and seems even slighter when set against the Prime Minister's statement on the constitution in July this year. It represents a distinct change of atmosphere. I was struck by the Secretary of State's quoting the report by the Joint Committee on the Draft Constitutional Renewal Bill and indicating that there was significant opposition in the House of Lords to the proposals to change the precise status of the Attorney-General. I do not know whether his experience compares with mine, but I find that in discussions in the other place one encounters the trade union of former Law Officers, who find it difficult to accept that there should ever be any change in that position. They are rather like the Lord Chancellor in "Iolanthe":

"The Law is the true embodiment

Of everything that's excellent."

In particular, members of that informal trade union believe that any change in the position of Attorney-General casts doubt on the ability that they themselves exercised to draw a proper distinction between their political and legal roles-that it casts doubt on their integrity. Of course, it is nothing of the kind-it is a consideration of what would be a proper system for the future. Nevertheless, that seems to be a pretty powerful body at the other end of the building.

The Bill fails to meet the objectives set out in the Prime Minister's statement. Let us start with the House of Lords. Mr. Tyrie, who is a valued member of the Justice Committee, advanced his own interesting proposal, but what we are in danger of living with for many years to come is not what this House voted for-a predominantly elected second Chamber-but an appointed Chamber in which more and more people are appointed and all new Governments carry out a rebalancing by appointing many more peers to ensure that the Chamber is not overwhelmed by those from the previous Administration. The hon. Gentleman quoted the very high figure of 300-odd peers appointed under the present Government. The Prime Minister has himself appointed no fewer than eleven peers to be Ministers, many of whom have since given up that role but still have the position of legislator for life that membership of the House of Lords confers. It now looks as though we will have a long continuation of appointment, possibly moderated in the way the hon. Gentleman suggested. There is merit in his proposal, particularly if it is possible that a new Government, of whatever kind, might-because nothing had yet been done to change the Lords- have to make some initial appointments.

An alternative solution to the problem is to allow Governments to have a certain number of Ministers who are not a Member of either House but who can be questioned in either House. We already have the problem that some of the most powerful Ministers in the Government, such as the Business Secretary, Lord Mandelson, cannot be brought into the Chamber of this House to be questioned, although they can be brought into Select Committees. There is no reason why we should not make arrangements for a small number of Ministers, whether from the Lords or not from either House, to be questioned in this Chamber.

I have not made up my mind to oppose the proposal by the hon. Member for Chichester, but my worry is that it would give a spurious legitimacy to appointment for potentially quite a long period and further delay the reform that is required-the creation of a predominantly elected second Chamber. I suspect that he must have been influenced by hearing about leaders in his own party starting to hand out their own future peerages. We even know who some of them will be, if the Conservatives get the opportunity to create them. If we are to believe what we read in the press, serving officers still receiving their pay in Her Majesty's forces-in the case of Sir Richard Dannatt-are being told that a peerage will be theirs. In respect of the House of Lords, the Bill, whether or not amended in the way that the hon. Member for Chichester suggests, goes nowhere towards meeting the Prime Minister's aspirations.

The Bill does not advance the aspirations about rebalancing the relationship between the Executive and Parliament. I agree that it is right that Parliament should approve treaties, but let nobody suppose that in most situations that will not mean the Government of the day winning the support of their own Members to ensure that a treaty is ratified. The Bill does not affect the things that severely unbalance the relationship between the Executive and Parliament now. Even in the workings of Parliament itself, so many things need to be attended to. I sincerely hope that those matters will be addressed by the Public Administration Committee, chaired by Dr. Wright, which plays a significant part in this process.

In the Justice Committee, we feel strongly that there are crucial things to be done. The control of the Order Paper by the Executive means that what this House discusses is effectively decided by the Executive. The dual role of the Leader of the House in being the main channel for House business, yet at the same time a member of the Executive, is not the way in which most legislatures would run their affairs. The House itself has no mechanism for introducing effective motions relating to business and the timing of business other than through the Leader of the House. The House itself is not making the decisions about how the Government's business should be dealt with. The Government are entitled to bring their business before the House and to have a means of ensuring that they are not frustrated by delay. However, the House should have the power to decide what are the most significant parts of that business and how it can be effectively debated, as well as to say, "We need more time to deal with this Bill even if we have to sacrifice some time on another Bill." At the moment, the House does not have that power. That is not to anyone's benefit, least of all those who have to work with the legislation that the House passes.

If anybody thought that the Government, in introducing the idea of confirmation or appointment hearings, had any intention of rebalancing the relationship between Parliament and the Executive, they will have been disabused of that notion by the discovery that on a rare occasion when a Committee has said, "No, we don't like the idea of this appointment", the Executive have replied , "That's very interesting, but we're taking no notice whatever." Nothing about the Bill or the measures surrounding it will rebalance the relationship between the Executive and Parliament, so it totally fails to satisfy the Prime Minister's aspirations.

What about the decentralising of power to local government? I see no evidence that the Government are prepared to take many steps in that direction or that they have accepted the fundamental philosophy required to so do, which is that local authorities in different parts of the country can do things differently and frame different targets and objectives instead of having them set by central Government. That is an issue for all the parties to consider, and it is part of my party's philosophy to a significant extent. Even we have to challenge ourselves from time to time and ask whether we are abiding by the philosophy of recognising localism.

I am convinced that the Conservative party has not absorbed a point that had a certain resonance in Conservative circles in times past-the importance of local decisions, locally made. The ideas that the party is currently putting forward are not backed up by a real philosophical commitment. Whenever anybody uses the expression "postcode lottery", I have to say, "Just a minute. We are bound to have differences between postcodes if we genuinely allow local authorities to make different decisions and make them democratically accountable for doing so." I challenge that term whenever I hear it. Of course people are entitled to campaign that their area should get what another area is providing, but in the context of different areas making different choices among competing priorities.

The Prime Minister has raised the issue of electoral reform and talked about a referendum on the alternative vote system. Indeed, the Government commissioned a substantial piece of work about the details of electoral reform, which produced a good, objective statement about various kinds of electoral system. It was one of the more objective things that I have seen come from the Government on the subject. However, none of that indicates any real progress or commitment. We will not rebalance the relationship between Parliament and the Executive if Governments can, for most of the time, rely on a significant majority in this House that is not reflected in votes in the country. The Prime Minister has also mentioned a written constitution, which can cover a wide range of possibilities and would be a major undertaking for this country.

Perhaps even more significant are the issues that the Prime Minister has not mentioned and are not in the Bill, but are fundamental if we are reviewing our constitution. The one that few people dare to discuss is the English question. England has been left with a pre-devolution form of government in a pre-devolution time warp. The government of Scotland, Wales and Northern Ireland has changed fundamentally, but England is governed by the Government of the United Kingdom. It is governed by UK Ministers and the UK Parliament, so not only is Parliament unrepresentative of the balance of parties in England, but many Ministers dealing entirely with English matters are drawn from the other parts of the UK.

There are many different ways of responding to that problem, but it cannot be acceptable simply to say that nothing has changed. Things clearly have changed-people look at Scotland, Wales and Northern Ireland and see different kinds of decisions being taken. They say, "We do not have the power to make those decisions, either in a region of England, in a local authority area or at England level." The Justice Committee has addressed that point in its report on devolution, and the Government must address it.

Another crucial issue that is absent from the Government's thinking and from the Bill is that of fixed-term Parliaments. As long as the Prime Minister can seek a dissolution at a time of his choosing, Parliament is weakened in relation to the Executive and we impose a limitation on its ability to challenge them.

I turn now to the role of the Attorney-General, which I mentioned earlier. It was covered in the draft Bill but is not in the Bill in front of us. The Attorney-General combines a ministerial role as overseer of the prosecution system with the role of legal adviser to the Government and that of deciding whether certain prosecutions should go ahead. The view of the Justice Committee was that those roles should be separated, and that view is widespread outside the House. It is brought into sharp focus when controversial cases arise.

The situation was in some ways worsened when the assumption was created that the Attorney-General should attend not just Cabinet meetings at which her advice was needed but all Cabinet meetings, which was the situation until relatively recently. When we questioned the current Attorney-General about that, she indicated that it was the Prime Minister's wish that she should attend all Cabinet meetings. I thought that that answer was rather revealing, because it showed the significance to her of the Prime Minister's wishes. I would rather hear the Attorney-General say, "The Prime Minister may want certain things, but I am the Attorney-General and my role is very distinct." There are many issues on which she has to say exactly that.

There have been some changes in the wake of the discussions on the draft Bill, and the Attorney-General does not now attend all Cabinet meetings. We are back to the previous situation, and she attends when asked to do so to discuss particular matters. The decision was made that there should be a protocol to strengthen the independence of the Director of Public Prosecutions, which I welcome as it has given a certain new authority to the Crown Prosecution Service. My Committee recently reported on the work of the CPS and the progress that it is making.

One issue that the Committee was particularly concerned about was the power in the draft Bill for the Attorney-General to discontinue not only prosecutions but investigations by the Serious Fraud Office. That is no longer in the Bill, as that whole section has gone. The response to our questions and criticisms was that that power essentially already existed, because the SFO is the responsibility of the Attorney-General. If anybody believes that that power exists, I am rather concerned about it. I hope that its absence from the Bill can be taken as an indication that Parliament does not want it to be viewed in that light. It is one thing for the Attorney-General to decide that a prosecution should not go ahead on the grounds of national security, but it is quite another for her to decide that a matter should not be investigated at all. That power does not exist in relation to police or Revenue and Customs prosecutions, and it should not be assumed to exist in the case of serious fraud.

On national security, my view, which was reflected in what the Committee said, is that it is not really the Attorney-General who knows about that. There are circumstances in which the Prime Minister, advised by intelligence agencies, knows things about national security that will be unknown to the Attorney-General, and there are very exceptional circumstances when it will be right for the Prime Minister to make representations to the DPP about the national security implications of proceeding with a prosecution. When that is the case, those representations should come directly from the Prime Minister, which would make them persuasive to the DPP. I do not see a necessary role for the Attorney-General in that process.

Essentially, the Justice Committee argued that the office should be separated out. There should be a legal adviser to the Government who is a career civil servant, which is the direction in which things are moving in Scotland. The current Lord Advocate has moved from one Administration to another and remained in office, so that is moving in the direction of a career appointment. There should still be a ministerial role for someone with responsibility for whether the prosecution system is working, efficient and properly resourced. I hope that I am wrong in imagining that the Government have carefully drafted the Bill to prevent us from discussing that matter in Committee, because many of us feel that we ought to do so.

844)

Andrew Tyrie (Chichester, Conservative)

I have just one point to make. I strongly agree with everything that the right hon. Gentleman has just said about the Attorney-General's role, but he did not make the point that it was not only the Justice Committee that came to that conclusion, but the Select Committee on Constitutional Affairs, both of which the right hon. Gentleman chaired. The Public Administration Committee also looked at the issue and came to the same conclusion. The same evidence from the same people was then heard by the Joint Committee, which extraordinarily seemed to divine from it a quite different conclusion. I think that that might say something about how the decision to withdraw that part of the Bill came to be taken.

849)

Alan Beith (Berwick-upon-Tweed, Liberal Democrat): When talking about the Justice Committee, I tend to subsume our previous existence as the Constitutional Affairs Committee, having been Chairman throughout, as the changes of departmental name and structure were reflected in what we were doing. However, the hon. Gentleman is quite right to refer to the other bodies that have taken the same view. Those on the Joint Committee who argued very strongly for that view were perplexed by anyone drawing a different conclusion from the evidence with which they were presented.

To return to the overall theme, the Prime Minister has announced grand aspirations. Clearly, this is a time when we need to offer people a basis on which they can have greater confidence that they have a system of government that can respond to their concerns and govern the country efficiently, and in which nobody has too much power. That requires a lot a fundamental constitutional change.

The Government's approach to constitutional reform, the Committee has argued, has been ad hoc and piecemeal. The reforms that we have been talking about will determine the direction and nature of our institutions for generations to come, so we must get it right and it must be done properly. Therefore, we need an underpinning set of constitutional principles based on a proper understanding of the position and role of Parliament in relation to other institutions of state. The reforms cannot be taken in isolation: one affects another.

I do not think we have had a process that best achieves that; nor do I think that the roadshow will achieve it. As the hon. Member for Cannock Chase indicated earlier, there is a case for some form of constitutional convention or commission to take on a wider responsibility for ensuring that good, underlying principles are carried through into sound constitutional reforms.

That is one of the lessons of devolution in Scotland and Wales. It was much more difficult to persuade people that constitutional change should take place in Wales, because there had not been the same process of constitutional convention as there was in Scotland. Now that devolution has happened in Wales, I would not advise anyone to put money on people voting in future to reverse the constitutional changes that created an Assembly and Government there. In Scotland, the process was made much easier by the fact that there was a substantial amount of agreement by a wide range of bodies, parties, and community institutions and organisations, about the direction of travel. Constitutional change needs to be properly underpinned, widely discussed and more ambitious than the Bill.

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