UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 499-ii

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

PUBLIC ADMINISTRATION COMMITTEE

DRAFT CONSTITUTIONAL RENEWAL BILL

Tuesday 29 April 2008

RT HON ED MILIBAND MP and SIR GUS O'DONNELL

MR MICHAEL WILLS MP

Evidence heard in Public Questions 93 -211

USE OF THE TRANSCRIPT

Oral Evidence

Taken before the Public Administration Committee

on Tuesday 29 April 2008

Members present

Dr Tony Wright, in the Chair

Paul Flynn

David Heyes

Kelvin Hopkins

Mr Gordon Prentice

Mr Charles Walker

________________

Witnesses: Rt Hon Ed Miliband MP, Minister for the Cabinet Office, Chancellor of the Duchy of Lancaster, and Sir Gus O'Donnell KCB, Cabinet Secretary, gave evidence.

Q93 Chairman: I am delighted to welcome Ed Miliband, Minister for the Cabinet Office and Chancellor of the Duchy of Lancaster, and Gus O'Donnell, Secretary of the Cabinet and head of the Home Civil Service, who have come to help us with our look at the Government's draft Constitutional Renewal Bill, particularly those parts of it which have interested this Committee and on which we shall report to the House. Thank you very much for coming along and talking to us about it. Do either or both of you want to say anything by way of introduction?

Ed Miliband: Very briefly, if possible, Chairman. Can I start by thanking you for the invitation to come to this Committee. Could I also put on the record our thanks to this Committee for all the work that they have done over a number of years in the whole area of constitutional renewal. You described in a recent debate in the House of Commons us having looked at your back catalogue in order to inform the Constitutional Renewal Bill, and I think that is an absolutely fair comment. I wanted to start by saying I think your work has been extremely useful to us. Let me make three specific points about our session today before handing over to Gus. The first is that the Civil Service aspects of the Constitutional Renewal Bill which we are going to be discussing today are very much a part of an overall approach to constitutional renewal which recognises that Parliament does need to be strengthened in relation to the Executive. That was very much the burden of the statement that the Prime Minister made when he took office last summer. In a way, putting the overall operation of the Civil Service on the statute and taking it away from being part of the prerogative is a recognition of that. Secondly, on the Bill itself, I think this is consistent with our approach over a number of years in relation to the Civil Service. The first act of the new Prime Minister, I believe, was to remove the Orders in Council which gave an executive role to special advisers. You have seen in recent years the publication of a new Civil Service Code, updated Codes of Conduct for ministers and, indeed, for special advisers and, of course, in a way the Bill is the most important development so far, putting the values of the Civil Service and its operation into legislation. The third and final point I would make, Chairman, is it is very important that this Bill does not simply try and preserve the Civil Service in aspic because I do think that the Civil Service, and in a way Gus has led the way on this, has shown that it needs to evolve in relation to the diversity of its numbers, the way it understands delivery of public services, the way it brings in outside expertise. Very much our intention in framing the Bill was to provide sufficient flexibility for the Civil Service to adapt and respond to the big challenges that it and the country faces. In a way, I think that is the biggest challenge facing the Civil Service and, indeed, the Government over the coming years. The final thing I would say before handing over to Gus is this is a draft set of clauses that we have published and we very much welcome your input before we come up with the final product.

Q94 Chairman: That is interesting. Just on the last point you made, and it is something I was going to ask you about, you are really quite open to taking even substantial amendments, are you, to the draft Bill?

Ed Miliband: Definitely we are very interested in what you and others have to say about the Bill.

Q95 Chairman: Thank you very much for that.

Sir Gus O'Donnell: Could I just endorse what my Minister said about the role of this Committee in this Bill. I think this is a really significant moment and I feel very pleased to be here answering questions on Civil Service legislation. If you think of it, 1854, Northcote-Trevelyan came up with this set of values and they have endured. I think there is a lesson there. Despite the fact that the labour market and the Civil Service are fundamentally different from what they were in 1854 these values have persisted. The Civil Service is changing, as Ed said, and the challenges we are facing are very different. If you think of the numbers of the Civil Service alone, in the last 13 quarters they have been reducing every quarter and, if we carry on with current trends, in the next year or two we will be at the smallest size since the Second World War. We are delivering more with less. We are working more across departments. We are meeting our efficiency targets. For me, the value of this legislation will be does it help the Civil Service perform for the 21^st Century and to do that there is just one thing I would stress more than any other: let us keep it simple. Northcote-Trevelyan endured because it concentrated on the values. When they finished their report they recommended that this be carried forward in a few clauses. The challenge for Parliament is to stick by what Northcote-Trevelyan said so that we keep it very focused and allow the Civil Service the flexibility to meet what will be the challenges, most of which I do not know, going forward over the next 150 years.

Q96 Chairman: Thank you for that. I have lost track now of the number of Cabinet Secretaries that I have asked these sorts of questions to about Civil Service legislation and the contrary views that we have heard expressed over the years. I forget what I have asked you about this. Have you always been in favour of a Civil Service Bill?

Sir Gus O'Donnell: I have been in favour of a Civil Service Bill as long as it can be very principled and values-focused, and this Bill I am in favour of absolutely.

Q97 Chairman: What do you say to those people who say, "We have managed for 150 years quite happily without all this being written down"? Are we in some kind of difficulty now that makes us have to do this? Are these values under threat?

Sir Gus O'Donnell: No, I do not think so. All I am saying is here is an opportunity to put them in statute and they are there forever, so if there were a threat in the future, but actually no. If anything, partly with your help, the Civil Service Code has embodied these values, it is in the document that civil servants read and the Civil Service Commissioner helps us go and sell that. We did it recently at that Civil Service Live event with a question time chaired by Janet Paraskeva. I think we are getting the message across to people and the new Code puts it in very simple language. If anything, I think we are in a strong position now to guide against whatever uncertainties there might be over the next 150 years. If it is an opportunity to put them in statute and it is kept focused and allows the Civil Service to be flexible enough to meet the needs, whatever they are, over the next century and a half then that will be a very big positive.

Q98 Chairman: I am sure we shall come back to aspects of this shortly. Could I ask you a couple of other things to start with. One of the virtues of getting you here periodically, Gus, is we get replies to our reports. They arrive as if by magic after we have waited for several months. We invite you to come along and the day before you come we get these reports. We have had two, one on our report on machinery of government changes, which is to do with the ability of governments, prime ministers, to reorganise the machinery of departments basically without going through any defined process, and the second one on public appointments where you have given us a very detailed and helpful reply. Could I just ask about both of those. On the machinery of government changes we made an argument that essentially said if government was going to reorganise any other bit of the state it would go through quite an elaborate process to do it, it would issue consultation papers and there would be a whole great palaver about it but governments can reorganise themselves even on a huge scale by a prime ministerial pen. We thought we can do better than that. You have told us in your report, "Oh no, we must stick with the existing system" otherwise it would basically dent the prerogative powers of the Prime Minister. The question I have for you is surely the whole point about this Constitutional Renewal Bill is to dent the prerogative powers of the Prime Minister, that is the underlying rationale. Why in this area are you using that as a defence against our report?

Sir Gus O'Donnell: I think that is because the Prime Minister takes the view that he needs to have the ability to shuffle around with his cabinet, shuffle around with the posts, shuffle around with the responsibilities, as he did when he came into office with the creation of the Department for Children, Schools and Families and DIUS.[1] He takes the view that this is his job and he could not do that in advance and put consultation down, he needs to get on with it and have Cabinet ministers in post. It is a political decision very clearly by the Prime Minister that that is what he thinks is the right thing to do.

Q99 Chairman: But in relation to going to war he is saying that used to be the position but, in fact, we need to involve Parliament now. I cannot understand why, when we are making very significant changes to how government is organised, we cannot have some sort of similar procedure involving Parliament.

Ed Miliband: I am very sympathetic to the two reports you have issued on this. Let me explain the dilemma in this way and the reasoning behind our response. When it comes up to a General Election, for example, a new government coming in might well want to reorganise government. I do not think it would be right to say to a new government, "I am sorry, you will have to wait for a number of months in order to do that reorganisation". That is one aspect of it. Think of a government that is in power, as ours has been, are we genuinely saying that we will consult in advance on a reorganisation of portfolios? Where would that leave ministers who were about to leave and lose half their portfolio or possibly all of their portfolio in the interim? I am sympathetic to this, but I cannot how see it is easy to do this in advance of any changes because a particular personality, an individual in our system, is intimately linked to the particular department and the configuration of that department for which they are responsible. You then come to the question of could we do it post any change that has been made. You suggested doing it by having these Transfer of Functions Orders done by affirmative resolution. Currently they can be prayed against and they can be debated on the floor of the House. My answer to that, Chairman, and again we did think about this quite hard, is you would then be saying to Parliament, "Have a debate on something which has already happened". I think the point of this Constitutional Renewal Bill is to give Parliament a say over things over where they genuinely can have a chance to make amends. Realistically, you are going to have a government that has already made a change putting it before Parliament to be rejected. Of course, there is a strong feeling then that a Transfer of Function Order can be prayed against and government can think about how it handles that. I am sympathetic to the fact that reorganisations of government should be kept to a minimum, I think that is right, they should not be done for the sake of them, and I am sympathetic to the points and comparisons you make with other prerogative powers that have been put onto statute, but I cannot see a way of resolving the two problems that I have just identified.

Q100 Mr Prentice: At our sister parliament in Ottawa there is a Westminster system and changes to departmental organisation in Canada have got to be approved-this is my understanding-by the Canadian Parliament. If they can do it over there, why can we not do it over here? Secondly, we had Professor Hennessy before us last week and he told us that the Ministry of Defence was set up by statute after the Second World War, it may have been the War Office or something before then, so we already have a Whitehall department set up by statute and if the prime minister of the day wanted to change it then presumably the primary legislation would have to be changed.

Ed Miliband: As I say, these Transfer of Function Orders do have to go through this House or they are subject to negative resolution. The other point I would make is I think there is an appreciation of the need to set out very clearly the reasons for changes, and we have undertaken in our response to say all future changes will be set out as I think the changes were last summer, the reorganisation last summer when there was an explanatory memorandum setting out the reasons for the changes, and ministers should make themselves available to select committees to explain the rationale behind changes. I am not aware of the Canadian situation, I will undertake to look into it. What we must not do in giving Parliament necessarily powers to hold the Executive to account is put government into limbo. Having thought quite a lot about your response and our response to your response, I cannot see how we can necessarily enhance Parliament's powers in this area without having that effect and this would be constraining the powers of any prime minister from whatever party in a way that would not necessarily be helpful to our system.

Q101 Chairman: I think you are more sympathetic than the Government's reply, if I may say so, and we might have interesting further discussions about this. So much else in the Constitutional Renewal Bill used to meet objections of the kind that you have just advanced, which is that basically we could not work government if we do these kinds of things if we had Parliament involved in approving war and all that kind of stuff. We have gone beyond all that and we have found out there are ways of solving problems if we really want to. That leads me to a second point. Reading the reply to what we said on public appointments and the criteria seems to be that these posts of particular public importance will be ones that deserve the involvement of Parliament and parliamentary scrutiny, the thought did occur to me on that test, and in the spirit of wanting to wrest prerogative powers away from prime ministers, which is the spirit of this Bill, why could the same approach not apply to the appointment of Cabinet ministers? Why should those appointments not have to run before select committees first?

Ed Miliband: I will let Gus answer that one!

Sir Gus O'Donnell: Are you talking about pre-appointment?

Q102 Chairman: Yes, pre-appointment. If a prime minister says, "I want to make this man Minister of Defence", he has to go and meet the Defence Select Committee and go through the same process that we described in relation to major public appointments.

Sir Gus O'Donnell: Well, certainly I have never worked with a prime minister who has thought of that one.

Q103 Chairman: No, but we are in radical new territory here.

Sir Gus O'Donnell: It would certainly take us into radical new territory. I just think of the practicalities. If somebody is put forward as the Defence Minister in the period before pre-appointment scrutiny, who is the Defence Minister?

Q104 Chairman: That will do as the first answer.

Sir Gus O'Donnell: Quite important if we have a real defence crisis. You would like to know there was a Defence Minister.

Q105 Mr Walker: Do you subscribe to the view that the captain should choose his team basically?

Sir Gus O'Donnell: Yes.

Q106 Mr Walker: The prime minister should choose his team?

Sir Gus O'Donnell: I think prime ministers should choose their Cabinet, absolutely.

Mr Walker: I think I might agree with that, Chairman, just to go against your line of questioning.

Q107 Chairman: I think Ed is certainly more interested in this idea than Gus was.

Ed Miliband: I am afraid, Chairman, you may call me a conservative on these matters but I tend to agree with the Cabinet Secretary on this issue. What we are trying to do here is strike the right balance between Parliament holding the Executive to account and, indeed, as I indicated in my opening remarks, it needs to be strengthened in that respect and that is the whole intention of the reform programme that we are talking about, but it needs to do so in a way that does not gum up the works and stop the proper business of government happening.

Q108 Chairman: Let us move back to more solid territory. On the Civil Service legislation we have had the Government's draft Bill and back in 2004 we had a Bill produced by this Committee and have now got the Bill proposed in the draft Constitutional Renewal Bill. These vary in different ways. In a nutshell, can you explain the process that explains any of the changes between the Government's position in 2004 and the one that we have now?

Sir Gus O'Donnell: In many ways looking at it again, taking account of what we have learned over the last couple of years, in all respects what it has suggested to me is the point I made right at the start is far more important. Things can change very rapidly and it strongly suggests to me keep this principles-based, keep this values-based and do not try and tie down things where actually you think you have got it right but for reasons that you had not anticipated it turns out not to be quite right. For example, if you specify definitions in legislation and it turns out actually you would have had to change that definition and that would have involved a change in primary legislation if you had stuck with the definition you started with in the first place. What it has led me to think on and try to implement through this is to keep it as principles-based as possible.

Ed Miliband: The Chairman's is a very good exam question. From looking at it, obviously I was not involved in the 2004 draft Bill but I do not think there are what we would describe as material changes from that version to this. There are issues about the way that you define the Civil Service, for example, which has changed. We take account of certain changes that have been made. For example, we have given additional powers to the Civil Service Commissioner so that she can undertake inquiries in response to complaints from civil servants, which was a change made in June 2006. I stand to be corrected, but as I would see it I do not think there are material changes, certainly not in intention and I do not think in letter either from the 2004 version.

Q109 Chairman: We will produce a list of these and show you that there are changes and you will probably have things to say about all of them. Can I just ask you this because this was raised by Sir Robin Mountfield when he came to see us last week. He said that one of his concerns about where we are at now is the reason for having legislation of this kind was partly to make sure that ministers did not do things that ministers should not do in relation to threatening the integrity of the Civil Service. It was okay having a Civil Service Code but there was the other side of the relationship which was ministers either not statutorily having to listen to Civil Service advice or asking civil servants to do things which were improper. He wanted the reciprocal obligation to be inserted into this Bill. Is that not reasonable?

Ed Miliband: I have looked back at your report on the draft Bill of 2004 and this Committee said that it was not minded to recommend that statutory form needs to be given to the obligations of ministers towards their civil servants. I agree with this Committee's report. Let me explain why. There would be two implications of doing what Sir Robin recommended in his testimony to you. One would be to put into statute ministers' obligations, and one might think that was a good thing, but the other implication of it would be to make justiciable the question of compliance with the Ministerial Code, in other words put into the courts potentially the question of whether ministers were or were not complying with the Code. I think ministers should be held to account by Parliament. Ultimately, as we know, it is for the Prime Minister to choose who is and who is not in government, but ministers are held to account by Parliament and in the court of public opinion. To open up the question of whether a minister complied with the Ministerial Code into judicial review does not seem to me to strike the right balance between the proper functions of the Executive, Parliament and the courts in this country. Personally, I do not think that would be the right way to go. I do not know but I assume that was why you did not think it was a good idea back in 2004/05, and I agree with you.

Q110 Chairman: We are in a sort of continuing discussion about this. We are interested in Robin Mountfield's position. If we are talking about core principles here, not about detailed implementation, one of the core principles is that ministers have to respect and comply too.

Sir Gus O'Donnell: I suppose I come at this as Head of the Civil Service thinking let us have a Civil Service Bill about what civil servants should do and the values that civil servants should operate. They are very clear, that is what this Bill is about. We have a Ministerial Code which handles what ministers should do and the Prime Minister is in charge of that. To my mind, the great value of this Bill is concentrating on the Civil Service.

Q111 Chairman: The Ministerial Code is non-statutory, a prime minister could abolish it tomorrow if he wanted to. It is a very fragile basis for a key constitutional relationship, is it not?

Ed Miliband: The requirement for civil servants to act on the four values that Gus talked about, including impartiality, is very clear and set down in statute. As I have said, there are complaints procedures if civil servants feel they are being put under undue pressure by ministers or others not to act in that way. I think any prime minister who came along and said, "I am going to change the Ministerial Code and ministers no longer have to uphold the political impartiality of the Civil Service and ask the Civil Service to act in a way which conflicts with the Civil Service Code", that prime minister would be held to account in the court of public opinion, as I say.

Q112 Kelvin Hopkins: Our system has a tendency to concentrate power in the hands of the Prime Minister and Downing Street and it works because there has been an effective system of pluralisation, there have been different centres of power which have a degree of independence, the key one of which I think is the Civil Service.

Sir Gus O'Donnell: Absolutely.

Q113 Kelvin Hopkins: There is a view that the Civil Service has been progressively undermined in its independence. You may disagree, but this is a view of the world and one I hold to myself. Does this not provide an opportunity to break with that Blair regime, or what has happened under the Blair regime, and re-establish the Civil Service as an independent body which can, as the saying goes, lead truth unto power, advise ministers and have a different coherence of its own and is not just a plaything of prime ministers. I speak as a person who is naturally conservative about these matters and I do have a view of the golden 1980s of these things and I rather admire the Sir Humphrey view of the world which I think was better than what we have had in recent years. Do you think this is an opportunity to re-establish what we have lost?

Sir Gus O'Donnell: I am afraid we start from rather different places.

Q114 Kelvin Hopkins: I thought we might.

Sir Gus O'Donnell: I do not accept the premise. I do think we are in an age now where the Civil Service is very strong, we attract the best. When you think of where the university graduates want to go, recent events have made it even more attractive for them to join the public sector, particularly the Civil Service, than possibly places elsewhere not so far from here, the financial sector. I do not have a problem with that. We are attracting very good people and are retaining them. I think we are very effective as a Civil Service, much more professional than we have been. I am afraid your golden age of the 1980s, if we look on it we did not have professional finance directors and the HR service was slightly embarrassing. I lived through that. I was recruited in 1979 and the fast-stream there was not tapped into if you happened to be anything other than white male Oxbridge, that was the vast proportion of people we were getting into the fast-stream, but now we have majority female entry into our fast-stream and are taking a much more diverse pool and, therefore, getting much better talent. I would be very happy to stand up and say I think the Civil Service now is better than it has ever been, not just it has not declined. We are very happy to speak truth unto power and that is why the Civil Service values-honesty, objectivity, integrity and impartiality-are absolutely right and that is why I value this Bill. I am strongly in favour of those things. I do not think it is a plaything, it is there to advise and it does give very strong, very clear advice on the basis of analysis of evidence and its ability and professionalisation to analyse evidence is hugely better than it was in the 1980s. I remember trying to give some advice to a Chancellor in the 1980s and on the basis of the crudest possible economic models it would take me a long time to estimate the impact of particular policies. With modern day computing I can do a hundred times as good a piece of work in about a tenth of the time. The technology has allowed us to be much more evidence-based and we also have a lot more data on which to collect that evidence and we do pilots. This golden age was not as evidence-based because there was not as much evidence and it was much harder to analyse because we simply did not have the tools. If I wanted to analyse what is the worldwide knowledge on a particular subject now I could get a vast proportion of it from the Internet.

Mr Prentice: So you did an analysis on the abolition of the 10p tax rate?

Q115 Kelvin Hopkins: I am pleased about all this professionalism and evidence-based and so on but, nevertheless, the Civil Service is different from other parts of our polity in that it is driven, and has to be driven, by a sense of commitment to the public interest. It has an ethos which is very powerful and absolutely vital to government.

Sir Gus O'Donnell: Absolutely.

Q116 Kelvin Hopkins: It is my impression that this has declined over time and we now have imported people from the money-making parts of the institution, if you like, and Mammon has been confused with public service, and even though I am sure that people are very professional, this fierce sense of loyalty to the citizens, to the public sector, to public service, to the nation, in a sense, is very different from that of those who work (very brilliantly no doubt) in the City and elsewhere who are interested in making money and running businesses and so on. I know people who want to work in the public sector for the public service; they do not want to work in the profit-making or profit-driven sector and they are very different, and that is the difference between the old Civil Service and the new Civil Service that there is this overlap.

Sir Gus O'Donnell: I think there is one piece of evidence that contradicts that, the relative pay levels that you are talking about actually have gone the other way, so public sector pay relative to that in the financial sector means that you are much better off in the financial sector than you were, rather than in your period when it was actually much closer. I think now you have to have a much stronger public sector ethos to be in the public sector because you are actually taking a much bigger financial cost to not going wherever you can be paid the most, so we have a very strong public sector ethos.

Q117 Kelvin Hopkins: If we can move on to politicisation because we had some of your retired former colleagues with us a couple of weeks ago, and they were saying that back in the 1970s there used to be a range of views within the Treasury, for example between Keynesians and neo-Liberals and monetarists or whatever, and there was a debate. Certainly I know that my own tutors in economics at university would say if economic policy changed there was always somebody who made one yesterday-"I have another model for you, Minister," for example after a devaluation or after being rejected from the ERM and so on-but the politicisation of recent years has meant that opposition within the Civil Service and the range of views within the Civil Service has been narrowed and we have become more focused and there is a view which is the view that everyone takes of the world now, there is not a difference of view about how we run the economy, for example. Is it not healthy to have a range of views within the Civil Service, particularly in the Treasury?

Sir Gus O'Donnell: I think it is very healthy to have a range of views, I strongly agree with that. One thing I would say is that we now have access to views not just within the Civil Service but internationally, and if you want to look at the international evidence now, at the push of a button you can get what anybody has written on, say, running the economy. Things have evolved over running the economy. As you say, in the 1970s-and I used to teach it-there were Keynesians versus monetarists. The one thing I would say about macroeconomic performance post the move towards inflation targeting is that it has been enormously better than it was before so the degree of debate has diminished somewhat. If you look at average growth rates, the variance in growth, the variance in inflation and the level of inflation, if you take those as a guide to the quality of macroeconomic performance post the inflation-targeting period, it has been enormously better than it was in your golden period of the 1980s or the 1970s, vastly better.

Q118 Kelvin Hopkins: Just a final point, a question I asked last week, in our draft Civil Service Bill, a number of things notably were missing from the Government's version, a definition of the Civil Service and the State at the beginning, which I think was very good, and the other thing was a list of values for the Civil Service, which is omitted from the Government's document. Do you not think it would be better to take more of our original into the Government document?

Sir Gus O'Donnell: I am with Northcote-Trevelyan; keep it short with few clauses, and it is very, very important that we have the values there.

Q119 David Heyes: I want to ask you about the key provision in the draft Bill which relates to fair and open competition for appointments and it says that selection must be on merit and on the basis of fair and open competition. If that is true-and obviously we would all subscribe to that-why have you provided exceptions from the rule in relation to the obvious examples, Crown appointments and diplomatic appointments?

Sir Gus O'Donnell: First of all, I am very strongly in favour of fair and open competition. I think it is a hugely important guarantee that we get the best people in the best jobs, and that is very important and particularly important for all the top posts. I think that there may well be occasions when you need an exemption and you mentioned the diplomatic one, and again I would stress I think something like 99 and a half % or all diplomatic posts are done by fair and open competition and the exemptions are very, very rare. The one that I guess I was most involved in was when I was working for Prime Minister John Major when he appointed Chris Patten to Hong Kong. I think there were very specific political reasons why he felt that was the appropriate appointment at that time. So I am with you, I would want these things to be incredibly rare, very exceptional, and for specific political reasons.

Q120 David Heyes: But the draft Bill gives total exemption for diplomatic appointments.

Sir Gus O'Donnell: It allows for that exception. I would want that exception to be used incredibly rarely.

Q121 David Heyes: What about Crown appointments, what is the justification for exempting them?

Sir Gus O'Donnell: What particular ones are you thinking about?

Q122 David Heyes: I do not know but that is the provision that the following selections are exempt from this requirement: selections for appointment to be made directly by Her Majesty.

Sir Gus O'Donnell: They are Royal Household appointments.

Q123 David Heyes: And the reason they are exempt?

Ed Miliband: My understanding is those would be the people who work in the Royal Household who are in a particular position in relation to the Royal Family, and I think we can understand some of the reasons why those might be exempt.

Q124 David Heyes: The Chairman has referred to your response to our proposal about preappointment hearings. In responding to us, you said that the reason for not having preappointment hearings for senior diplomatic appointments is because all public appointments are made on merit. Is there not a clear contradiction here?

Ed Miliband: If I may on this, I understand, just to echo what Gus said in relation to the Diplomatic Service, that this should be a power that is used very rarely. We have actually looked back at the historical records on this and it may interest the Committee to know there have been 11 such appointments in the last 40 years, starting in 1968, so this is a power that is used very rarely. If the Committee has concerns about this, I do not think that preappointment hearings is really going to be the way to solve this. Preappointment hearings are designed-and this is something the Committee very much recognises in its report-for posts, and I quote from your report, "for which accountability to Parliament and the public are an important part of the role". If you are talking about the Governorship of Hong Kong for example, I do not think that is in the same category, so the Committee might want to look for remedy, if it worries about this issue in relation to the Diplomatic Service, and I think it is justified because it is a very rare power that would be used, but I do not think the preappointment hearings is necessarily the remedy for that.

Q125 Chairman: Can I just come in on David's question on Crown appointments, I think you had better drop us a note on this because I do not think it can be the case we are simply talking about Royal Household appointments here; we are talking about appointments that are made by the Prime Minister in the name of the Queen, there is a category of appointments, and I think you ought to dig out the category and tell us about it and then try and tell us why that category should be exempt from appointment on merit?

Ed Miliband: Fine, we will do so.

Q126 David Heyes: As I said, the draft Bill is strong on merit in terms of appointment, but it does not have the same requirements in relation to advancement and promotion; why is that?

Ed Miliband: Gus, you might want to talk that because they are directly in relation to your role.

Sir Gus O'Donnell: When we get somebody in the Civil Service, and we are absolutely clear about this, that at the top levels of the Civil Service we are into fair and open competition. As you manage someone, the half a million civil servants, through their careers, there are all sorts of considerations where you can have managed moves and the like, so I do not think it would make sense to micromanage this very much. What I have done is to bring the Civil Service Commissioner into the appointments for example of all permanent secretaries and now I have extended that to the top 200, so she has a role in all of those appointments and I think that has gone much further than we have ever done before and I think that is really useful, but I do not think we should get her in to micromanage all the individual promotions. That is a job for managers within departments to do.

Q127 David Heyes: The lack of any Code to support promotion and advancement leaves the door open, does it not, for ministerial vagaries? We all remember the Thatcher test about "Is he one of us?" There should be an opportunity in this Bill to close that down.

Sir Gus O'Donnell: This will be covered by the whole of the top 200 appointments within the Civil Service which are under a competitive process with the Civil Service Commissioners involved on all of those posts.

Q128 Mr Prentice: I think I am right in saying that when we had the First Civil Service Commissioner in front of us last week, Janet Paraskeva, she expressed some concerns about this, that although recruitment into the Civil Service is on merit, then promotion once inside the Civil Service is not necessarily on merit. I hope I am not putting words into her mouth.

Sir Gus O'Donnell: It is on merit.

Q129 Chairman: No, she was saying it did not come under the rubric of the Civil Service Commissioners and that is what her concern was.

Sir Gus O'Donnell: But it is regulated, it is within our standard employment methods. What I am saying is for the whole of the half million Civil Service that is what we do.

Q130 Mr Prentice: Okay, so people are promoted on merit, that is what you are saying?

Sir Gus O'Donnell: Yes.

Q131 Mr Prentice: I was just going back to the Treasury Capability Review, and you were the former Permanent Secretary there, and on page 21 it says that 37 % of the Treasury's senior civil servants believe that there is a fair system of career progression. It got me thinking about the other 63 %. The most recent staff survey confirms that confidence in the system of promotion is declining. That is in the Capability Review of the Treasury which was just published, I do not know, just a few months ago, so there is an issue there, is there not, if it has been identified in the Capability Review?

Sir Gus O'Donnell: Absolutely, the Capability Review process that I started.

Q132 Mr Prentice: Yes!

Sir Gus O'Donnell: And that we now actively monitor what staff think about these processes I think is a very important and good step forward. You will find in any organisation if you ask those sorts of questions you will not get 100 % answers. Those answers are disappointingly low, I accept that, but it is not because of processes, what is happening within the Treasury for example is it is a department with a very high turnover, which is unusual.

Q133 Mr Prentice: Is it perhaps a possibility of sour grapes there because you have targets-and I sound like the school swot here and I am really not-and in the Autumn Performance Report you talk about by April 2008 (that is this month, this year) departments would reach the following targets, and I do not think they have been met: 37 % of women in the Senior Civil Service, 30 % of women in top management posts, that is pay bands two and three, ethnic minorities and disabled staff and so on. I just wonder if this whole issue of fair promotion within the Civil Service is being coloured by those targets which are being laid down to increase the percentage proportion of women and ethnic minorities in senior jobs?

Sir Gus O'Donnell: No, I think you have to understand we do all of these things following employment law, and we cannot legally discriminate in favour of women or ethnic minority groups.

Q134 Mr Prentice: So it is just aspirational?

Sir Gus O'Donnell: No, it is very important, I strongly support those targets. Those targets were set at quite aspirational levels and to get to those would have required us to improve our performance. I stress when you compare what is going on in those numbers with the private sector you will find a dramatic difference.

Q135 Mr Prentice: I do not doubt that.

Sir Gus O'Donnell: --- An enormous difference, which I think it is worth thinking about why that is, so we are doing enormously better than the private sector on our diversity numbers particularly with regard to gender and particularly with regard to women at the top, but, no, we do not-we are not allowed to-discriminate in favour of those groups, that would be illegal.

Q136 Mr Prentice: I just wanted to take us on to the scope of the Bill because in the previous Bill, the 2004 Bill, GCHQ[2] was included. It is not included in the present Bill and neither is the Security Services, MI5, and I was just left wondering what was the thinking in government when this change was made?

Sir Gus O'Donnell: Sure, the idea here-and this comes back to what I said earlier about the approach-we have said this Bill covers the Civil Service and then listed the exemptions as opposed to 2004 when we were trying to list the things that it covered, and if we had done that we would already be having to try and amend it in primary legislation because it would have been inappropriate, so this time we have said the whole of the Civil Service with the following exemptions. We have decided to treat all of the three agencies in the same way because all of the agencies are covered by separate legislation already so you want them to be together. As I am the accounting officer who goes across all of the agencies, it seems to me very sensible that we actually treat them together.

Q137 Mr Prentice: So an aggrieved civil servant, whether a spy in MI5 or a radio operator, if they still have them, in GCHQ, if they had a problem with the Civil Service Code and so on, they would be expected to sort that out with their line management?

Sir Gus O'Donnell: First of all, they have slightly different Codes for the agencies. They all have their own Codes based upon the values of the Civil Service, so very similar to the Civil Service Code but slightly different, and, secondly, they have special complaints procedures, so they have an independent person that they can go to, because we are aware this is a potential problem, and that person can then refer those complaints directly to the Prime Minister.

Q138 Mr Prentice: Who is the independent person that an aggrieved person at MI5 would go to?

Sir Gus O'Donnell: They have their own special complaints person.

Q139 Mr Prentice: A secret person?

Ed Miliband: I know this was the subject of discussions with Janet Paraskeva last week and, if I may say, I think there was some confusion about this, but my understanding is that it is the case that there has been an independent staff counsellor at GCHQ that people with grievances can go to, and that is the case now and that will not change as a result of this legislation.

Q140 Mr Prentice: It all sounds a bit arcane, does it not, but the point that was raised with Janet Paraskeva last week was whether the Civil Service Commissioners should have the power to initiate inquiries, and when I was reading the consultation to the document everyone was in favour of the Civil Service Commissioners having the power to initiate inquiries and yet you, the Government, has decided they are not going to have that power; why?

Sir Gus O'Donnell: That is a slightly different point. I am not sure that the Civil Service Commissioner herself is in favour of having the power to initiate inquiries.

Q141 Mr Prentice: Tony is going to come in and rescue me here I suppose, again, but I think she made the point that it could be opening the floodgates and that if you give the Civil Service Commissioner the powers to initiate investigations, then she is going to be completely overwhelmed. That is different from saying that she may not see a role for the Civil Service Commissioners.

Ed Miliband: One thing I referred to earlier which has changed since then, because I know at the Committee with Janet you referred to the responses to our consultation, is us recognising that civil servants will be able to take complaints to the Commissioner, so it is the case that civil servants who have a concern, a worry about what is happening they can go to her and she will then investigate it. I suppose my perspective on this about this question of initiation of inquiries and whether Janet Paraskeva should initiate inquiries-and Gus will have his own perspective on this-is that we have got to be very careful not to politicise her post and other posts because we all know what happens when you put someone in this position when she can initiate her own inquiries subject to views from anyone is that it immediately becomes a cottage industry of people seeing something in the newspapers and then writing to her and saying, "I demand that you investigate this." What I think is good about what we have done is we have said to civil servants who are worried about what is happening (and, after all, they are in quite a good position to know what is happening in the Civil Service) is they can go to her and say, "I have an anxiety, a worry about a particular situation; please will you investigate," and I think that is the right course of action and the right way of protecting the role of the Commissioner.

Sir Gus O'Donnell: And that is my impression of discussions that I have had with Janet. We do not have a difference of view about this. If a civil servant goes to Janet and Janet wants to investigate something, that is absolutely a good thing as far as I am concerned.

Q142 Chairman: This is quite an important point and one obviously we shall say something about when we report on this. I think what she actually said was that she thinks there is absolutely a need for someone to do this job, she was not sure that it was her, and it seemed to be largely a matter of resources for her, but she said if it was not us she could not think who else could properly do it. For example, a number of complaints come in-you get this with the Ombudsman-which often reveal some general issue and it is daft to be able to deal with individual complaints but then not to go and investigate the general issue.

Sir Gus O'Donnell: She can do all of that.

Ed Miliband: She can do that.

Q143 Chairman: It is not clear from the Bill that she can do that on her own initiative.

Sir Gus O'Donnell: No, but you talked about her getting five or six complaints. That is what the new version of the Civil Service Code says; that you can go to the Civil Service Commissioner. If she gets five or six complaints of a different form and then if she were to say to me, "Look, I am really worried about this specific area, I would like to look at it," I would be completely happy for her to do that.

Q144 Chairman: Yes, but she has to come and ask you and there has to be agreement and so on.

Sir Gus O'Donnell: I would not turn it down.

Q145 Chairman: If the Civil Service Commissioners are the guardians of the Code and if they are the guarantors of these values that are being adumbrated in the Bill, then surely it makes sense to give them whatever power they need to make sure that any worries about the operation of those values and the aspects of the Code can be investigated, not merely through hearing individual complaints?

Sir Gus O'Donnell: Which you would do by allowing her to take complaints from civil servants and follow them up, and I think that is precisely what she can do. I am not quite sure what more you need but if there is anything that you think could strengthen the values then again, like I say, I think that is quite important.

Q146 Kelvin Hopkins: Just to go back to appointments, and I do not expect really to get the answer I want and I expect I can anticipate the answer I will get, if we can use the example of Nigel Lawson when he was Chancellor, he wanted people in his private office who were simpatico of his view and before we went into the ERM (this is something that I think is public knowledge) and he surrounded himself with people in his private office who took a similar view to him rather than people who would say, "Actually, I am sorry, Minister, I do not think we should be entering the ERM at the present parity is a good idea," he had people around him who would say, "Yes Minister, I agree with what you are saying."

Sir Gus O'Donnell: This is in your golden age of the 1980s?

Q147 Kelvin Hopkins: Slightly after but nevertheless ---

Sir Gus O'Donnell: No it was not, I was there.

Q148 Kelvin Hopkins: This is a real example and indeed I hope I am not treading on toes. This is an example of politicians insisting on civil servants being appointed with a particular view. Subsequent to that we have had a very strong Prime Minister who was, among other things, concerned to make sure that his people got safe parliamentary seats and had a range of special advisers making sure that ministers and civil servants indeed were in line. Are you suggesting to me that they were not equally concerned at making sure that their favourite civil servants got senior jobs during that time?

Sir Gus O'Donnell: I do not know what to make of this. Nigel Lawson appointed me as his press secretary, it was wonderfully successful in that within a couple of months he had resigned, so did that mean I was particularly favoured by him? I think Nigel Lawson, who I know, had a very strong regard for people who actually would stand up to him and would argue with him. He liked nothing better than an argument with economists about matters, and I can tell you I was involved in them, particularly when he came out to Washington, there were a number of times and gave speeches there on the pros and cons of the ERM. There was a very strong debate within the Treasury about whether exchange rates and shadow exchange rate targeting were the right things to do. I can talk about it because some of the papers have been released now. There were a number of people who thought an independent central bank was the answer rather than exchange rate targeting. There was a very healthy debate. I think this is what strong ministers of all parties do: they value people strongly putting the counter argument because they know, when they come out of that policy, they are going to be in Parliament. There are going to be people opposing it and they would like to have heard those arguments. They may not agree with them, but I think good ministers of all persuasions value strong officials.

Ed Miliband: I agree.

Q149 Kelvin Hopkins: They still made the wrong decision in the end on the ERM but nevertheless perhaps Ed can tell me a little bit about the subsequent regime, the Blair regime. My impression is that it was much more controlled and centralised than any previous government had been.

Ed Miliband: There is a point of disagreement on this. I think your question is partly about special advisers and partly about other aspects of so called politicisation. I just do not believe that 70 special advisers or however many there are across government are somehow undermining the value of the Civil Service. I was a special adviser in the Treasury when Gus was the Permanent Secretary there. I think good special advisers-I am not necessarily putting myself in that category-prevent the politicisation of the Civil Service because they do the political thing that ministers want to have done and which would be inappropriate for civil servants to do. I go back to my opening remarks, without getting into the question of golden ageism or not. When I think about the big challenges the Civil Service faces going forward, I just do not recognise the description that one of the big challenges is whether it is going to become a politicised service. I have worked with many civil servants both at the Treasury and now at the Cabinet Office. I do not know their political views. I do not seek to know their political views. Obviously that would be the wrong thing to do. What I want is people who are effective and able. I meet lots of exceptionally able and bright civil servants who would serve any government, in my view, of any party.

Sir Gus O'Donnell: This point about good special advisers being good for the Civil Service is really important. I would worry and I worry most when you have an area where there is a weakness and a risk that you might get the civil servants trying to fill a vacuum where there is poor political advice because the special advisers are not providing it. That is why having the values in the Bill will be really important. Good special advisers that do that well are very good news for the Civil Service and keep us out of that territory.

Q150 Mr Walker: Sir Gus, how do you think the Freedom of Information Act has affected government and your relationship with ministers and special advisers, because there is concern out there that although it seemed like a good idea at the time you have civil servants running around saying, "For God's sake, do not write anything down", so you get more of this sort of sofa government as opposed to government where there are notes and a record taken of decision making.

Sir Gus O'Donnell: There are very many aspects of FOI that we should say are unambiguously good. Access to information for the public in all sorts of areas I think is hugely useful. It can take up quite a lot of senior time. Just referring to that last question, I remember spending a lot of time on FOI requests relating to papers going back to ERM entry, for example, which obviously you would not discuss with the current set of ministers. They do take a lot of senior Civil Service time and these papers would be released anyway in due course. It is very important for the Civil Service in terms of giving their honest, objective, impartial advice that we do write down that advice. It is very important that ministers carry on asking us for it. Freedom of Information has some exemptions in terms of advice to ministers. The one thing that I worry about is the uncertainty. You cannot quite tell in advance, because of the way the FOI Act is written in terms of that public interest test in each individual case, whether something is going to be subject to that overriding clause or not. That is the one area where I say I have some doubts but in general I keep telling everybody it is absolutely important that we write down all of our advice. We should be proud of our objective advice and it will in due course see the light of day. I think it is very important that we have that safe space to advise ministers and to speak the truth under power without knowing that it will be in the public domain very quickly because of an FOI request. I think there is an exemption there and it is important that it is upheld.

Q151 Mr Walker: You do not think it did contribute to this sofa style of government that The Daily Mail likes to write about?

Sir Gus O'Donnell: No.

Ed Miliband: I agree with Gus that there is a big culture change that FOI brings. I think that overall it is a positive culture change for government. In 20 years' time people will wonder what all the fuss was about probably because people will adapt. New people will come into the system that are used to it. At the moment of change it always has an impact. From the point of view of ministers, my only thought on this is what is unusual about government is that ministers individually can express their view but then they have a duty to go out collectively to defend the position of the Government, even if that is contrary to their view. I think ministers need to be able to do that in a way that is not going to then put them in a very awkward position very soon after, because that is one of the duties of being part of a collective. You go out and defend the position of the collective, but you need to be able to express your view. This is not a reference to any particular case but I think that would be my only ----

Q152 Mr Walker: You do not want it to stifle debate amongst colleagues.

Ed Miliband: Exactly.

Q153 Mr Walker: On constitutional reform, when did it all go so terribly wrong that we needed constitutional reform? Maybe it has not gone wrong. Maybe it just part of the progression and growth of our democracy. Was there anything over the last five, ten, 15 or 20 years that stands out in your minds as something that needed to be addressed and will be addressed by this proposed legislation?

Ed Miliband: In a way, we are of the same generation coming into Parliament. I was reading over Easter-which makes me sound a bit sad-a biography of Disraeli and Gladstone. What was remarkable was the length of their speeches but I will leave that to one side. What was also remarkable, without sounding pompous about this, was the extent to which Parliament was the site of fevered, excited debate. It seemed like every night but I am sure that was not the case.

Q154 Chairman: That was before the Whips arrived.

Ed Miliband: That may or may not be true. For our generation, I feel that over the ten or 15 year view, Parliament needs to be strengthened because it is sad that Parliament has become less important in public debate. My impression would be that people of our generation see it as less important to speak in Parliament than to go on the BBC or Sky. I think that needs to change. For me, one of the important aspects of this constitutional renewal, quite apart from the need to hold the Executive to account which is always an issue-the power of the Executive waxes and wanes-is the need to strengthen Parliament and make it a site at which important debates and important things happen. That is why I think the legislation is important.

Sir Gus O'Donnell: I would just add that from the Civil Service point of view this is an opportunity. If you are having a constitutional renewal Bill you do not get these opportunities very often. Therefore, I would say let us make the most of it and use it to enshrine the values, but I do say with some slight trepidation that what might come out might not be as simple, clear and useful as what goes in.

Mr Walker: If we had a strong, self-confident Parliament we would be taking the lead on this and we would not need the Executive to take the lead. I think that is a sad reflection on our chamber. I hope, if we do bring this Bill forward, it is the last time the Executive will need to bring a Bill forward and Parliament, when it feels it is losing authority and power, will take actions from within itself to address the concerns of the public.

Q155 Mr Prentice: David Owen, when he was before us a few weeks ago, said that the Freedom of Information Act is just changing everything. Of course, Sir Gus, you turned down one of my requests under the Freedom of Information Act for information on Lord Ashcroft and the nature of the undertaking that he gave in March 2000 before he was ennobled, having been turned down twice for a peerage before then. I am taking it to the Information Commissioner. Is the Information Commissioner overturning an increasing number of decisions that the Civil Service is taking, you and after it has gone to appeal? Would you know?

Sir Gus O'Donnell: I could find out the exact numbers for you. My impression is that he is not but I do not have the actual numbers. Obviously, remember, with FOI requests, there was a vast number that happened at the start. Whatever statistics you get, you need to analyse them quite carefully. I stress what I said at first. The vast proportion of FOIs will relate to questions from the public so you might get a misleading number. They might all go through, so you might get a very small proportion that have gone to the tribunal. I think the class you are interested in is a slightly different class of FOI requests, is it not?

Q156 Mr Prentice: Richard Thomas may take a different view of what constitutes the public interest than you may. It was Richard Thomas who said MPs' expenses have to be published and it may be Richard Thomas, the Information Commissioner, who tells me what Michael Ashcroft said before he was ennobled. He may say that it is in the public interest for me to be told, although clearly you do not think so.

Sir Gus O'Donnell: Sometimes we do come to different views.

Q157 Mr Prentice: I understand that. It is not personal.

Sir Gus O'Donnell: I mean in other areas like what is value for money and what is sustainable, because we certainly would not have these in the Cabinet Office.

Q158 Mr Prentice: Can I just ask about special advisers? I do not want to misquote Janet Paraskeva again, if I misquoted her before, but she I think told us that the failure to put a limit on the number of special advisers could pose problems down the line. It could, she said, drive a coach and horses through the Civil Service. Sir Robin Mountfield said much the same thing. Is there a problem? May there be a problem down the road that the Government is not taking this opportunity to set down in statute the number of special advisers that can be appointed at any given time?

Sir Gus O'Donnell: Given the current sorts of numbers, 70 to 80 out of a Civil Service of half a million and a senior Civil Service of 4,000, that is why I do not worry about this argument about politicisation. With these sorts of numbers, it is not a problem at all. Indeed, good quality special advisers around the system, two per minister in general, work well.

Q159 Mr Prentice: Robin Mountfield, a former mandarin, a top man like you, said the draft Bill was grossly deficient when it comes to special advisers. The fact that we only have 70 or whatever it is that you have just mentioned does not mean to say that an administration in the future could not pump huge numbers of special advisers into the senior Civil Service and completely neuter it. It would be perfectly possible.

Ed Miliband: I think that is very unlikely to happen.

Q160 Mr Prentice: Why are people like Robin Mountfield and Janet Paraskeva saying that?

Ed Miliband: I am not sure that Janet Paraskeva was saying that. I think I indicated earlier on and I think you said this in one of your reports on the question of special advisers that rarely can such a small group have received such a disproportionate attention. I just do not recognise the anxieties that people have. What have we done? We have a special advisers' Code of Conduct. We have transparency. There is an annual report on the number of special advisers and their pay. We have talked about the Civil Service Commissioner and some of the powers that she has. I suppose I would just echo what Gus said. The idea that 70 people in government can overwhelm a huge Civil Service is just not an idea that I recognise. Actually, it is very important that it protects the impartiality of the Civil Service because it means that civil servants are not expected to do things that they should not be doing. Any political things that need to be done are done by special advisers.

Q161 Mr Prentice: On the issue of the moment, on the abolition of the 10p rate of income tax, I take it that the permanent Civil Service in the Treasury would have explained to the then Chancellor the consequences of following the policy when it was adopted that there would be five million people who had lost out. I take it that the senior Civil Service would have made that absolutely clear?

Sir Gus O'Donnell: In the run up to a Budget, the Treasury will have advised the Chancellor on the aspects of his policies and the distributional consequences of the decisions he was making. Absolutely.

Q162 Chairman: Can I just come back briefly to the special adviser point? You think of the volume of commentary on this over the years. The point that is being made is if this Bill, albeit a simple, short Bill, is to do with putting lines in the constitutional sand then one of the lines surely is about the balance between the politically appointed people and the permanent Civil Service; and yet that line is not drawn. You say, "Oh well, the present situation seems all right" but it does not tell us anything about the enduring nature of that balance over time. I think that is the worry that people might have.

Ed Miliband: It is not my job to put a question to you but where would you draw that line? It goes back to Gus's point about flexibility. The system needs to have flexibility to adapt to needs. Given everything we have said about the nature of the British Civil Service and what is being put into statute, I cannot see circumstances in which the fears Gordon has raised would be realised. In the end, a prime minister would have to answer to the court of public opinion on this question. Your Committee rejected the idea of an arbitrary limit for reasons I fully understand, because of the need to have some flexibility in the system. I am fully in favour of lines in the sand.

Q163 Chairman: Perhaps we need a non-arbitrary limit.

Ed Miliband: I think limits are arbitrary in this respect. That is my view.

Q164 Chairman: Apart from special advisers, are there circumstances in which people could and should be appointed to the Civil Service who could not serve equally any administration?

Sir Gus O'Donnell: I think that is very unlikely. Sometimes we will get specialists in on short contracts if we want someone with a particular set of skills but that is normally someone who has a very unusual specialism, quite often an IT specialism.

Q165 Chairman: That is thought to be a fundamental principle?

Sir Gus O'Donnell: Absolutely.

Q166 Chairman: If it is a fundamental principle, why not enshrine it in a Bill that is about fundamental principles?

Sir Gus O'Donnell: Surely that is about the value that civil servants have to be impartial. That is very clear.

Q167 Chairman: The test of being able to serve any administration in all appointments other than special advisers would be one way of formulating the principle.

Sir Gus O'Donnell: Absolutely. If I was doing an interview for an individual who was coming in on a short term contract, I would be absolutely clear. Someone who comes in as a civil servant is absolutely there to work loyally for whatever the elected government is. If that changes, they carry on working loyally for that government.

Q168 Chairman: There has been not only discussion about numbers and their balance in the system but what special advisers can do. There is a different formulation that has crept in here. Under the old Ordering Council the formulation was that special advisers were there to offer advisers to ministers. That is what their role was. That has now changed to "assist ministers" in the Bill before us. Some people are worried about what "assist ministers" means. It goes to the question of the extent to which they can be a conduit for instructions to civil servants. This seems to have now become a grey area which is not resolved by the Bill. If the Bill is about fundamental principles, this surely is a fundamental principle.

Ed Miliband: There is a certain irony because the word "assist" came from your draft Bill as I understand it.

Q169 Chairman: We are allowed to ask questions about our own formulations.

Ed Miliband: Indeed you are. I think you can see from the actions that the Prime Minister took when he took office that it is not the intention to give executive powers to special advisers. Indeed, he abolished the exception that made that possible, as I said earlier. I think it is pretty clear from the Bill that ministers do not exercise line management functions over civil servants and if the job of a special adviser is to assist a minister then special advisers themselves are not exercising line management functions over civil servants. That is the logic behind it and there is certainly no intention to make that possible.

Sir Gus O'Donnell: I am very glad the Ordering Council has gone. I think it is very important that special advisers are not ordering around civil servants but in terms of assisting ministers that is what they are supposed to do.

Q170 Chairman: The only question is quite what assisting ministers involves. It would be nice to get a little more clarity. Perhaps we shall by the time this process is finalised.

Ed Miliband: That is set out in the Code. The Code is pretty extensive on this.

Q171 Chairman: When Peter Hennessy was here last week he was welcoming of much that the government was doing. He regretted the fact that there was not a full blown War Powers Act but he accepted the fact that the route which has been taken here, which is to go by convention, is the only show in town. What he was absolutely adamant that Parliament should press for was that in situations where the country was being invited to go to war and when Parliament was being invited to approve that the Attorney General's opinion should be publicly available to Parliament. What is the argument against that?

Ed Miliband: I think this is a subject for the questioning of your next witness. I think this is one of the areas that is obviously being looked at and, to be fair to Michael Wills who you have before you next, it is very much within his remit.

Chairman: I suppose we can accept that as a transitional answer. Thank you very much, both of you, for coming along. We have not of course done justice to it but we have done some justice to it. Thank you very much for coming and talking to us.

Witness: Mr Michael Wills MP, a Member of the House, Minister of State, Ministry of Justice, gave evidence.

Q172 Chairman: I am delighted to welcome Michael Wills, who is the Minister of State at the Ministry of Justice, to continue our discussion about the Constitutional Reform Renewal Bill that is before us now and aspects of it. Do you want to say something by way of introduction or do you want us just to ask our questions?

Mr Wills: I had understood you really wanted to talk about the review of the royal or non-personal prerogatives so I was going to make a few remarks about that. However, I can see from your very interesting briefing note that you want to range far more widely than that in which case perhaps you would like just to crack on rather than hearing my rather restricted remarks on the prerogatives.

Q173 Chairman: It may add up to the same thing anyway. You heard the question that I asked at the end of the last session about the Attorney General's legal advice. They batted this to you. Why do we not just have you answer it?

Mr Wills: I think it is very important in such important issues for the life of our nation that Parliament and the people have a clear understanding about the legal basis on which the Government is proceeding. That I think is agreed generally. We all agree on that. There are particular problems in the full legal advice being put forward. Let me explain a little bit about what I mean by that because this goes to the heart of a very important issue in front of government at the moment and generally in relation to Freedom of Information. It is our view that government is not the owners of such information. It is the custodian of it and that is a very crucial distinction, in my view. It means that there must always be a presumption that we release public information to the public. That is what we have done with the Freedom of Information Act. That is what the recent reforms that we have undertaken since this Prime Minister took office do, to extend the scope, to consult on extending the scope of Freedom of Information. It is done on that basis. Equally it means that there are times when it is in the public interest for that information not to be held accountable. That is the basis on which we proceed. When we look at the detailed legal advice that the Attorney General gives the Government on this particular issue or more generally, I think we have to be clear that there are times when such advice would be inhibited in its full frankness if it was known that it was going to be made available for publication. That in the end is not in the interests of good government. It is not in the interests of the public. What the Government needs in these circumstances is full, frank, uninhibited, unbiased, objective advice. Knowing that the full advice, every sentence of it, would be made publicly available could inhibit that and that in the end, in our view, is not in the public interest.

Q174 Chairman: We do not want to revisit Iraq but the Government with its welcome commitment to involving Parliament in these decisions now-obviously the question arises about the legal advice that is available to Parliament in those situations. It becomes untenable, does it not, for government to say, "We are going to invite Parliament to give a view on war and peace but we are not going to invite it to see the legal basis for our position"?

Mr Wills: With respect, that is not what I said. I think it is important that Parliament is given the legal basis on which we are proceeding. I was drawing a distinction between a statement of the legal basis which would be a full, frank statement of the basis on which we are proceeding and the verbatim, full transcript of the Attorney General's advice. There is a distinction there and that is the distinction that I am seeking to draw. I absolutely agree with you that Parliament should be given the legal basis on which we are proceeding and on which any government is proceeding.

Q175 Chairman: The reason for not having the full statement of the Attorney General's advice is what?

Mr Wills: It is what I have just endeavoured to set out. In the case of legal advice given by the Attorney to the Government, if it was known that that was going to be made fully publicly available, all the details of a legal opinion which can follow convoluted argument in the full knowledge that bits of it might be seized upon by some of the less benignly intentioned sections of our democracy, that might inhibit the frankness and objectivity of the advice being given. That is not in our view in the public interest. It is in the public interest that Parliament and the people should have the legal basis on which we proceed.

Q176 Mr Prentice: Surely it is important to follow through the logic of the legal advice? If the summary is a faithful representation of the full advice, why can we not have the full advice when we are talking about sending our military to war?

Mr Wills: It is a crucially important decision. It is absolutely vital that government has access to the fullest, frankest, often perhaps unwelcome advice, whether it be from lawyers or from military experts. If the process risks prejudicing the frankness of that advice, the objectivity of that advice, there is a problem. I think it is clear that any lawyer, the Attorney General or whoever, knowing that their full legal opinion following the logic of their argument all the way through, is going to be put in full in the public domain, not necessarily as we all know happens treated objectively and faithfully in the public domain, could well end up being inhibited. It could have what we call a chilling effect on the advice. This is a delicate balance. I understand the scepticism about this and it is important that the legal basis is given to Parliament. We do not think that fundamentally distorts the process.

Q177 Mr Prentice: I understand that but Peter Hennessy, who knows the internal wiring of the British Government like no one else, said it was so important that if the legal advice was not made available by the Government to Parliament then Parliament should appoint its own chief legal adviser, who would offer advice to Parliament on whether we should go to war.

Mr Wills: I am afraid I have not seen his evidence.

Mr Prentice: Am I misrepresenting him?

Q178 Chairman: No.

Mr Wills: Was he saying precisely that it was very important that every word of the legal advice was disclosed or there should be the legal basis, because there really is a difference.

Q179 Mr Prentice: We do not want to rerun Iraq, but it is important. The context was that Peter Hennessy back in 2003 said there was an abandonment of due process. At the time the decision was taken to go to war, there was not the full legal advice. There was only the summary, the Attorney General was present and so on. It is I suppose learning from that experience that we were taken to war after due process had been abandoned. That is why he comes on so strongly about Parliament having the right to demand full legal advice that was preferably given to the Cabinet by the Government.

Mr Wills: On the fundamental point about the importance of due process in this and in every other important area, we are in complete agreement. That is one of the fundamental drivers of this bit of legislation and a lot of the Governance of Britain. It is to introduce system and process into the operation of government. It is the essence of the prerogative powers that they have been largely unfettered and they are not subject to that kind of due process. That is precisely what is driving us in this area on the fundamental point. On the point of detail about whether due process depends on the full legal advice being given in all its logic, every word of it, or whether an honest, open, legal statement completely consistent with that legal advice but not actually a transcript of it would fundamentally compromise due process I think we disagree on, if that is what you are arguing, that it is absolutely essential that the full legal advice be disclosed rather than the legal basis for the proposed action. We disagree, I am afraid.

Q180 Chairman: Can I move us into more general territory? As I understand it, your role is generally to go around stirring up excitement about constitutional reform matters and to stimulate interest in Britishness, British values and trying to get some statement of these and so on. This must be hard going. I say that having just looked at this Hansard report on political engagement for this year where they do this survey each year. They say how the public do not understand any of this and, since 1997, MORI has found that no more than two per cent of the British public have identified constitutional reform as one of the most important issues facing the country. They go on to find that they are only interested in three issues. Two are about the voting system and the third, which they do get excited about, is the West Lothian question, although they do not call it that. This is difficult territory, is it not? That is the stuff we do not want to talk about, the stuff that the public do want to talk about, and the stuff that we want to talk about they seem not at all to be interested in.

Mr Wills: It is hard and I think we have to be realistic. These sorts of process issues, wiring issues if you like, about power in our society are often very difficult. There are moments in our national history when they become extremely important and they crystallise into very high level issues but for most of the time, quite understandably, people are concerned with the state of their mortgages, the state of the economy, whether they are in jobs, the state of public services, crime and immigration. These are front line issues which all politicians have to deal with and they are inevitably going to be more salient than these sorts of issues, often because they are quite complex and technical. There are two things that I would say in relation to that. If we get this programme of reform right, we will be setting in place mechanisms and changing the way that our constitution operates in ways that we hope will engage people more over time. The effects will not be instantaneous and sometimes government has to take a step back and say, "Look, we are going to put the mechanisms in place to do the right thing, the effects of which will take place long after our political lifetimes." Constitutional change often is like that. Sometimes it is much more dramatic. The effect of the Freedom of Information Act in changing the political path has only just begun. The effects of it will only properly become evident, I think wholly beneficially in my view, perhaps 20 years from now because it takes a long time to change political cultures which is what essentially that is about.

Q181 Chairman: What progress are you making with this attempt to get an articulation of British values?

Mr Wills: We are about to launch the process for it. It is a process which we want very much to be owned by the British people themselves. We are adopting an innovative mechanism of policy formation. There will be a lot of consultation, town hall meetings, a significant online presence and so on. In the end, all that will feed into two citizens' summits, the first of which on a regional basis will decide whether there is a need for such a statement of British values. We believe that there is a very strong case for articulating what it is that brings us together as a nation, but we want to hear from the people themselves on this. The second one will deliberate on what it should be. By a citizens' summit I mean a demographically representative body of the British people that will come together and deliberate on all the arguments. They will have access to all the information from the consultation, access to witnesses who will come and give evidence, some of which will inevitably be hostile to the Government and the Government's position on this. They will then, as a body, deliberate. The outcome of those deliberations will come to Parliament in keeping with our belief in representative democracy for Parliament to take the final decision.

Q182 Mr Walker: I am just amazed. How can Parliament legislate on what British values are? It just seems absolutely amazing to me that we are going to do this sort of road show. We are all going to get together in these citizens' summits and have a think about what our values are. What on earth do you think will come out of that? What is a British value?

Mr Wills: To call it a road show rather demeans what is an innovative, new, democratic process in which the British people will come together to discuss precisely these issues. There is a lot of cynicism in London about this particular issue. What is extraordinary is that if you ask people outside the confines of Westminster, Whitehall and what used to be called Fleet Street what it means to be British they will come up with their own answers, often very thoughtful and considered answers because our national identity is something that matters to all of us. It is not that this is a myth, that somehow we are searching for something that does not exist. It does exist. It exists in all countries and most other democracies have a way of expressing themselves in certain ways. You may think that expressing it through the values that bring us together is the wrong way of doing it and other people may agree with you. I would just ask you to reflect on this, as you find this so astonishing. If you accept that there is such a thing as a national identity, which the great majority of people share-and I am sure you do believe that-where does it reside? It does not reside in 19^th century articulations of blood and soil. No one believes that any more. It is pernicious nonsense. If it does not reside in those 19^th century notions, where does it reside? I would absolutely welcome your contribution to this process and debate. If you can persuade everyone else that this is an astonishing waste of time which I fundamentally disagree with, that is the democratic process, but we should discuss it.

Q183 Mr Walker: I can assure you I am not going to take part in this. I will tell you what a British value is. It is one man, one woman, one vote. That is a pretty good value in a democracy. Unfortunately, the Joseph Rowntree Foundation has reported that in many parts of this country it is one man, one woman, three or four hundred votes, so why do we not start there and restore confidence in our electoral system that has been so thoroughly debauched over the last decade?

Mr Wills: I do not agree with that interpretation of it but can I thank you for your contribution to the debate on the British statement of values? You have just made a contribution. I am very grateful for it. We will register it and pass it on.

Q184 Mr Walker: Please do not pass it on.

Mr Wills: It will be recorded.

Q185 Mr Prentice: The Joseph Rowntree Foundation that reported yesterday said our elections were wide open to fraud. We have had judges over recent months and years saying that the UK is like a banana republic when it comes to our elections. The Electoral Commission has for three years now been insisting that the Government bring in individual voter registration. Why is the Government resisting this if it is still resisting it?

Mr Wills: We are not resisting it. It is a big change. We have to make sure that it takes place in a way that does not decrease participation in elections. That is the issue.

Q186 Mr Prentice: Does not the integrity of our elections trump that?

Mr Wills: The integrity of our elections is paramount. I do not recognise the descriptions that you have just given. The Joseph Rowntree Foundation report is more balanced in all the detail than the representations we have just heard. Of course there are issues. Of course there have been instances of fraud and they have to be tackled and they will be tackled. We face as a democracy certain challenges and we have to find our way through them. Participation is declining. I think it is right that the Department should look for ways of increasing participation in our elections. Postal votes is one of them. If the system is opening itself up to fraud-and there have been cases of it-we have to close those processes which do render it open to fraud. We are looking at the question of individual voter registration. We are not resisting it, but we have to be sure that any changes we make do not worsen the problem in another area.

Q187 Mr Prentice: I have an instance in my constituency at the moment where there are 27 voters registered at a certain address which begs the question who the head of household is who signed the form certifying that the other 26 are legally entitled to vote. The only way you are going to get round that is to go for individual voter registration with identifiers, whether it is national insurance numbers, photo ID or whatever it is. It has to happen quickly, I put it to you.

Mr Wills: As the Secretary of State said in the House of Commons this afternoon, the processes that would be needed to put it in place would not be in place before the next general election, but it is something that we are looking at.

Q188 Chairman: Is it not even more difficult because I think I am right in saying that almost all the abuse cases that we have had have involved minority communities?

Mr Wills: I cannot answer for the statistical analysis.

Q189 Chairman: We should not be mealy mouthed about it. It is importing cultural practices from one place to another. If we are serious about Britishness, surely one of the things we have to be serious about is telling everybody who lives here about the integrity of democratic politics.

Mr Wills: Of course. This is fraud. This is a crime. People go to jail for this sort of thing. There is no question about conniving at it in any way whatsoever. Of course it is wrong. It is a crime.

Q190 Chairman: If we are honest, we have been so anxious to get turn out up that we have been rather casual, have we not, about some of the implications of it?

Mr Wills: No. I do not think we have.

Q191 Chairman: We have, because we have resisted individual registration.

Mr Wills: From memory, I cannot recall many people in this House resisting the idea of doing what we can to encourage postal voting to increase participation. This has undoubtedly opened up problems and we have to deal with them. We are dealing with them. No one is complacent about this issue. I agree with everything you have said about the integrity of the electoral system. Somehow the idea that we are just shrugging our shoulders at it, saying that it does not matter and belongs to that community or this community is simply not true.

Q192 Kelvin Hopkins: A simple solution would be to adopt what they do in Northern Ireland. In Northern Ireland, we used to have regular abusers registered. Now they have rigorous controls of postal voting so that you have to show a passport to get a postal vote and individual registration. Do that here and solve the problem. I hesitate to say this in public but one of the reasons why our party is reluctant to do this is that it might dent our support in certain areas. That is a political consideration which I say in front of a Conservative colleague. I think that is something we ought to address.

Mr Wills: If I can just reassure you, the Northern Ireland example in our view as well is enormously important. It is being studied with great care at this moment.

Q193 Kelvin Hopkins: I had a discussion with you shortly after the new Prime Minister took over about the prospects for constitutional change. You were very enthusiastic and so was I. Is this not an opportunity to clear the decks and clear out the stables of what went on with the previous regime, to have a new constitutional settlement in a sense which opens up democracy and diffuses power away from the centre?

Mr Wills: I agree. I would argue that what we are doing is just that. If we try and define in a sentence what this is about, it is about diffusing power. It is about the redistribution of power in our society. It is an argument. It is a discussion about where power is located and where it should be located properly. I agree with you. Healthy democracies have power diffused widely. That is a constant challenge. This is not a one off solution. What we know is that power clusters chemically around power and therefore it is a constant exercise to keep breaking it up. It is why I personally believe that Freedom of Information is so important, because that is one of the greatest dissolvers of accumulated power potentially in a democracy, but it is by no means the only thing. What we have to do is to recognise that the character of our democracy has changed. We have to be very careful about measures of direct democracy which sometimes seem a very attractive panacea. We are bringing forward measures of direct democracy. We are not against it. Sometimes people talk as if direct democracy is a panacea for all the accumulated problems of representative democracy with which we are all familiar, but actually there is also a great risk of direct democracy. It can place power disproportionately in the hands of the wealthy and the powerful. That is something that we always have to be on guard against. That is what we are trying to do. This Bill is part of that process but it is by no means all of it. We are shortly going to be announcing the consultation on the Bill of Rights and Responsibilities which will be an important part of this process as well, into which incidentally, just to return to the vexed topic of the British statement of value, we see the British statement of values forming potentially an important part. Any rights and responsibilities in the end, any Bill of Rights anywhere in the world-and it is in our own history-have been rooted in the values of the society for which it provides part of the governance. Somehow or other, if we are to proceed with a Bill of Rights, there will have to be some statement of the values of the society which give those rights force and validates them.

Q194 Kelvin Hopkins: Going back to the point that Tony made about only two per cent of the population being interested in constitutional reform, is that perhaps because they do not appreciate the significance of constitutional procedures or constitutional power; that we do not have enough of it in Britain constraining the Prime Minister and that our system permits a wilful Prime Minister to do things which in no other policy would he be permitted to do? The last Prime Minister, if he did one good thing, made us more aware of the problems of having a wilful, powerful Prime Minister who aggrandises power and drives us for example into illegal wars.

Mr Wills: If it was as simple as that, we would have half solved the problem already. I think it is much more complicated than that. The problem is that the importance of these issues is always just one removed. If people are worried about schools, education, crime or immigration, what they actually need to know is that they have the hands on the levers of power to effect change and that their voices can be heard. Historically, they have been able to do that at elections. If they do not like what they are getting, they are able to vote en masse. That increasingly is not satisfactory. We have to provide ways for people to have an influence on policy making between elections, systematic processes by which their voices can be heard consistent with a system of representative democracy. That is what we are trying to develop and that is what we will be publishing documents on in the next month or two.

Q195 Mr Prentice: You talk about real power. A lot of people out there think it is just pretend power. You just told us that we are going to have a Bill of Rights and Responsibilities. Is this going to be a kind of mission statement or will it give people rights that they do not have at the moment? Will it be justiciable? Will people be able to go to the courts and force the Government to act because their rights are being infringed? How different is it from the Human Rights Act that is already on the statute book? What do you mean by a Bill of Rights and Responsibilities?

Mr Wills: Just to be clear, I said that we would start a consultation on a Bill of Rights and Responsibilities. However, that is not to say all the questions you ask are not extremely pertinent. I am afraid they slightly pre-empt my brief today. We have not published the document. When we publish the document, I would be very happy to come back to the Committee and answer all these questions, but it is just a little bit premature and you will forgive me.

Q196 Mr Prentice: I understand that. I am not going to press you on it. I only say that because in the next month or so we are going to get an NHS Constitution. I am left wondering whether this NHS Constitution is going to give people rights that they do not have at the moment. I think this is a problem for the Government because if you have an agenda to give people real power then you have to be serious about it. Otherwise people will just laugh in a mocking way.

Mr Wills: They tend to do that anyway, I am afraid, whatever the subject. All I would say to you is that your points are very well made. I agree with you. We will not be bringing forward anything which does not in our view make a real difference.

Q197 Kelvin Hopkins: Is it not the case that the real reason why people are not interested in voting any more is that they do not think the politicians make any difference because they do not really think they have any choice any more? The centre is now controlling the whole range of policies, a very narrow range of view, even to the extent of controlling who gets elected in safe seats to make sure they are in line with the regime, that kind of thing. They have given up because they do not think there is real choice. When they see New Labour versus New Conservative, they think: what is the difference?

Mr Wills: I think there are many reasons for issues around participation. One of the big questions that we will all have to answer is whether the decline in participation has stabilised, whether if we had more contentious politics, where politics were genuinely more between polar extremes rather than clustering around the centre at the moment, you would see increases in participation. In France where there appeared to be a real choice at the last presidential elections we saw an extraordinarily high turn out. These are unknowables and we will all have to make our own judgments on those. On those judgments will depend quite a lot of our continuing reform programme.

Q198 Mr Walker: As you rightly said, we have a general election. We elect the government of our choice and after four or five years or whenever we get the chance to move those people on or keep them in place. How is it in between those periods that you would allow people to exercise power and influence the democratic decision making process?

Mr Wills: We are going to be publishing a document shortly which sets out some of the mechanisms. It is a green edged document because I think governments have to be extremely careful about being too prescriptive in these areas, but essentially there are already some mechanisms in place-referenda for example-and it is important that we have a growing understanding of when it is appropriate constitutionally to have a referendum. We are trying to make more systematic the various engagement processes that have grown up piecemeal over the last few years. I am talking about things like citizens' juries and, as I have described, citizens' summits. These are often rather glibly derided as focus groups. Focus groups have their place but what we are looking at much more seriously are deliberative mechanisms which other countries-Canada and Australia-have tried, where citizens come together to inform the policy making process. We have to understand that as politicians and civil servants we do not have a monopoly of wisdom. It is often the people who are closest to the problems that are trying to be solved that have the best solutions. We need better mechanisms to hear from them.

Q199 Mr Walker: This is where I get slightly concerned. If we were to be doing these in the sixties, we would still be locking up homosexuals and hanging people. If we had had citizens' juries in the sixties, the majority of people would say, "Homosexuality? That is not nice. We do not like that. Hang 'em all high." We are elected to lead this country. That is what we are sent to Parliament to do. In a sense we are professionals for four or five years.

Mr Wills: I agree. We are still governed by Burke's dictum about owing our voters our judgment as well as our industry. That is absolutely fundamental. At the start of this document we have what I hope you will agree when you see it is a robust defence of representative democracy precisely on the grounds you mention. That is why these are mechanisms to inform policy making, not to dictate it. Parliament in the end will have the final say and that is crucial for exactly the reasons that you mention. It is because Parliament and our system of representative democracy allow much greater space for deliberation. It is much more effectively scrutinised by the media and within Parliament. For all that people say about Parliament, it is becoming in my view a much more effective scrutiniser of government. These two processes of accumulation of executive power and more effective scrutiny have been going on side by side. It is crucial that we not only keep that but build on it. This is the fulcrum of our democracy and nothing we are doing will challenge that.

Q200 Chairman: Charles's question goes to the heart of the Britishness stuff too. I do not understand whether this articulation of Britishness, this statement of values that is coming, is going to be an aspiration-that is, a statement of what we would like to be-or whether it is a statement of what we are. If it is a statement of what we are, it is going to have some pretty unpleasant stuff in it.

Mr Wills: That depends on your point of view of the British people. I would describe it as a mixture of both description and aspiration. In the end, we have quite deliberately given the control of this process over to the British people in a way that we do not propose to replicate very widely in terms of policy making, but this is a special issue. We think it is important that they have it and it will be for them to decide. In my own view it should be about the best of what we are. Like all nations we have patches which we would rather ignore and that will be part of the discussion. In the end, Parliament will make its own judgment, for all the reasons that Charles has just mentioned, about whether it agrees with that deliberative process. In the end, all of us as democrats must have some faith in the representative body, 500 or 1,000 demographically representatives of the British people. I do.

Q201 Mr Walker: It is called Parliament. We have 656 of us. I do not understand why we need another 1,000 people who are unelected and may not be representative. This is where it falls down. We have the House of Commons. "Commons" means common people, ordinary people, 656 of us. Maybe it is too many. Maybe it is not enough but that is what we do and I do not understand why these 1,000 people transported into this auditorium will be gifted with any more insight than we have.

Mr Wills: They will not necessarily but it is a question of increasing the range of mechanisms. We are not proposing this to replace Parliament. We are saying there are certain very specific issues like a British statement of values. I note your scepticism-I say "scepticism" rather than "cynicism"-about the whole process but just assuming that you could be possibly persuaded that this was a worthwhile exercise at least as a discussion, imagine what would happen if Parliament took this on to itself. Immediately out there people would say, "Who are you?" Large numbers of the British people do not feel we represent anybody except for ourselves and however invalid we may think those opinions are that is what they feel. If it takes root, this is profoundly important. If we look at the equivalent statements in other democracies, in the United States, in continental Europe and elsewhere in the world, these are profoundly important in their national lives. It will only take root and endure if you believe that that is worth doing if the British people themselves have ownership of the process. That is what we are trying to achieve. Parliament will be fundamentally involved. We are not excluding Parliament from this. You will be able to have your say in great detail and Parliament will have the final decision. It is an addition, not a replacement.

Q202 Chairman: When Peter Hennessy was here last week, he reminded us of what I think he called the George Formby view of these things which was, "It's turned out nice again" and we should not go off looking for systemic solutions. We should muddle along-I am paraphrasing him now-as we have always done at a high level. If you had to say historically what had been distinctive about the British, it would be things like, unlike foreigners, they do not have to fly flags and swear oaths of allegiance. When we start telling people they should fly flags and swear oaths of allegiance, we start looking silly, do we not, and very un-British?

Mr Wills: With great respect, you are transmuting giving people the opportunity to do something with forcing them to do it. They are very different things. Giving public buildings the opportunity to fly a flag on St George's Day is one thing. Forcing people to have them in their front gardens is something complete different. We are not forcing anyone to do anything. That is the whole point, but we should be able to give people these opportunities. National identity is very important to the great bulk of the people of this country. Having said that, the question is what then? Do we just let it be important to them and, as a government, do nothing much? Do we not discuss this issue because we feel it is so well established we do not need to have a national debate about it? It is something we feel intrinsically and people can express it for themselves as they wish? I understand that argument very, very clearly. For most of the period since the Second World War, we have not discussed it. Before then it was a matter of vigorous, national concern. If you look back into the late 19^th century, this was the stuff of a lot of discussion about what it meant to be British. We may disagree with the conclusions that the British people came to at that point, but it was a matter of vigorous, national debate. If we as Parliament, as democratic politicians, do not enable a process for discussion and deliberation on this, there are poisonous influences in our society that seek to colonise this territory for themselves. If you leave a vacuum at a time of profound social and economic change globally from which none of us is immune, we may be very disappointed to see what comes in and fills it.

Chairman: I understand the point but I happen to think that muddling along is our greatest salvation. Gordon?

Q203 Mr Prentice: I do not know if I am persuaded by all this.

Mr Wills: You might be persuaded.

Q204 Mr Prentice: Can I go back to citizens assemblies and you mentioned Canada? In Canada there was a citizens assembly set up in British Colombia and they were to go away and come forward with a recommendation on whether or not to change the voting system from first past the post to PR[3]. In Ontario last year, or the year before, a citizens assembly was set up to look at the voting system in Ontario. On both occasions the citizens assemblies stuck with first past the post. If you want to give citizens real powers, why do you not have a citizens assembly to look at first past the post in the Westminster Parliament? The ultimate decision would rest here in Westminster. Or why do you not have citizens in Scotland deliberating on whether the Scottish Parliament should have tax-raising powers? The Prime Minister has set up a Constitutional Commission to look at these things. Why not hand it over to a citizens assembly? It comes back to the point I made at the very beginning about whether this is a pretend exercise or whether it is actually delivering real powers to people which they can exercise. Are you with me?

Mr Wills: It certainly is not intended to be a pretend exercise, there is no doubt about that. As the Chairman has pointed out in the very excellent Hansard study, this is not a vote-winner, this is not what people are talking about on the doorsteps, there is no point in doing that sort of exercise at all. This is about re-wiring power in our society but it has to mean something, and everything we are doing we want to mean something. Some of this we have to proceed quite carefully and cautiously with because potentially this is radical constitutional change and it must endure, it must be sustainable across parties and over time, and you have to proceed cautiously with that. In relation to the voting systems we have published a very thick tome ----

Q205 Mr Prentice: It was not very well received, was it?

Mr Wills: It was not very well received by those in favour of PR because it did not come out with an uncritical recommendation of PR. I think actually if you read it, you will see it is very fair-minded in analysing various systems of electing parliamentarians and the various merits and disadvantages of each of those systems. We published it precisely in that way to inform the debate about the future. We cannot ignore discussion about the voting system when discussing all these wider areas. Whether it is appropriate for a citizens assembly to say that, or Parliament, or a referendum, this is something which has to be discussed.

Q206 Mr Prentice: Are there big gaps though? We had Robert Blackburn, who is a professor of constitutional law, in front of us last week, and he accused the Government-and I hope I am not misrepresenting him again-of adopting an ad hoc approach. You have constitutional renewal which takes in flag flying, the reform of the Civil Service, war-making powers, treaties, it is all very ad hoc and there is nothing to link it altogether. I think that was the criticism he was making. If you are coming forward with legislation grandly entitled "constitutional renewal" there has to be more of a linkage there.

Mr Wills: I do not think I would describe it as ad hoc, I would describe it as a step by step approach, and for the reasons I have just outlined I think that is important, but I would argue that there is a fundamental driving analysis behind this, and I would argue there is a theme behind all these different bits of work that we have put in place. Just to repeat myself briefly, these are the things such as that power tends to accumulate towards the powerful, healthy societies have mechanisms which diffuse that power constantly, and what we are trying to do is produce new mechanisms to meet new challenges.

Q207 Chairman: Finally we are getting to the question you came to talk to us about although we are just ending. Professor Blackburn, just mentioned, did say what Gordon said he said but he also said in a note to the Committee, which I think goes to the heart of the whole question of prerogative powers and their transfer and so on, "In my view, the draft legislative proposal should clearly indicate that Parliament is or will become the source and legitimising body for the current executive powers under consideration, including armed conflict and treaty making. However, the terms of the draft Bill and the White Paper would imply the Government still wishes to retain its authority under the ancient theory of the Crown, simply imposing qualified procedural requirements in the exercise of these powers. In the case of war powers they are not even constitutionally enshrined in statute." So the question will be, the aspiration is there from the Prime Minister's original statement to put Parliament in the driving seat, to transfer executive powers, but if you look at it and ask which powers have unequivocally been transferred, it is very, very hard to find any. What you can find is, as Professor Blackburn says, some procedural constraints on those powers inserted, and that is quite a different enterprise, is it not?

Mr Wills: I am not sure it is quite as different as you are suggesting in fact. What we are trying to do is fetter the power of the Executive, and if you call that procedural constraint on the Executive, it is, but we are trying to systematise and regularise some of this-something which in practice is already taking place; I do not dispute that for a second. These are difficult issues. On the question of war powers, for example, we conducted a very wide-ranging consultation, we had very different responses, including from people who were extremely worried about this, exactly the same with the position of the Attorney General, and all these different areas, and there are very different points of view about all this. I come back to the fundamental point that any constitutional change, unless it takes place out of war or revolution, has to be careful because it has to endure in a democracy. As far as possible we have to proceed as consensually as we can. It is not always possible but as far as we can we have to start from that supposition because you cannot change your constitution every election.

Q208 Chairman: No. People point, as Professor Blackburn has done, to the gap between necessarily the rhetoric and the reality. The statements were, "We are stripping the Executive of its prerogative powers and enthroning Parliament", but, when you look at it, that is not what is happening, we are inserting Parliament into part of the picture but in each case there is a saving power for the Executive.

Mr Wills: I think the test is how this will all look in 20 years' time. Well, it is an important point. If you look at the 1832 Reform Act, at the time this was seen as revolutionary but actually very, very soon it was seen as a timid move, not nearly far enough, we had two other great suffrage acts and actually the whole process was not completed until well over a hundred years later. You need a bit of historical perspective to judge the true significance of these measures. We want this to be significant, we have made it clear this is not a blueprint, it is a route map, and this is the beginning of a process of change. The symbolic significance of this is considerable in our view. Whether it actually puts everything on a statutory basis and fully codifies these non-personal prerogatives is another matter, but I think the changes are considerable and we want them to be considerable and we will continue with this process. This is not the end of the story.

Q209 Mr Prentice: When are we going to get the full list of prerogative powers because you are scoping at the moment? When will you finish your scoping?

Mr Wills: I am sorry, this is not going to be a very satisfactory answer, I am afraid, but as soon as possible. Your report four years ago did say that was the very least the Government could do and we agreed.

Q210 Mr Prentice: We wanted a requirement in six months, I think from memory, and we are four years down the track and you are still scoping.

Mr Wills: Yes, and this is, as it were, a new administration. The scoping has begun now. It is taking us rather longer than we had hoped. We have had a lot of replies in. It is sometimes quite difficult to identify, for example, because some legislation either expressly or impliedly repeals a prerogative and it is sometimes not altogether clear whether the prerogative still in fact exists technically. Some of the big obvious ones we are dealing with in this Bill but there are an awful lot of them tucked away and if we are going to do this we need to do it properly. It needs to be fully comprehensive and then we can deal with it. It is being done, I can assure you, and I am happy to come back in a few months' time and answer for any further delays but we do want it completed as quickly as possible.

Q211 Chairman: That is a fine offer which we accept. We are very grateful to you for coming along and talking to us in this rather non-joined-up way about a variety of things and I suspect we shall do it again when you visit us. We have enjoyed it very much. Thank you very much indeed.

Mr Wills: Thank you.

Mr Prentice: Can I just ask about special advisers?

[1] Department for Innovation, Universities and Skills

[2] Government Communications Headquarters

[3] Proportional Representation