Lord Young of Acton (Con)

My Lords, I declare my interest as the director of the Free Speech Union. In my short time in your Lordships’ House, I have developed a rule of thumb: when a Bill is brought forward in response to a national outcry over a terrible tragedy, it often goes far beyond what is needed to prevent that tragedy happening again. This Bill is one such example. I am sure that we will come to the other shortcomings of the Bill in due course, but this amendment addresses the purpose of the Act as set out in Clause 1. The purpose of the Act, it says, is to ensure that public authorities and public officials “at all times perform their functions … in the public interest”. Surely this casts the net too widely, particularly as the public interest is nowhere defined in the Bill. Let me give a practical example of an unintended consequence this could have—I am indebted to my noble friend Lord Goodman of Wycombe for suggesting this scenario. Imagine that a Conservative Government are elected on a manifesto commitment to leave the European Convention on Human Rights. The Prime Minister instructs the Cabinet Secretary to begin the process of preparing notice of withdrawal under Article 58. Let us assume that there is no debate about whether that instruction is lawful; in my hypothetical example, that issue is settled. But the Cabinet Secretary refuses to carry out the instruction because they believe that leaving the convention is contrary to the public interest. Incidentally, they are also concerned that if they carry out the instruction, they could face a slew of private prosecutions led by Jolyon Maugham for acting in a way that is “seriously improper”, as per Clause 13. I know that private prosecutions require DPP consent, but who is to say that a Labour-appointed DPP would not give consent to a private prosecution of a Cabinet Secretary who helps a Conservative Government leave the ECHR? If they refused consent, Jolyon Maugham would, of course, JR that decision, and he would point to Clause 1 when seeking permission from the High Court, arguing that “seriously improper” conduct should be understood with reference to the requirement in Clause 1 to always act “in the public interest”. In any event, in this scenario, the Cabinet Secretary point blank refuses to carry out the instruction. Faced with this refusal, the Prime Minister makes it clear that, unless it is carried out, the Cabinet Secretary will be dismissed for gross misconduct. Under the law as it stands today, that would settle the matter. The Civil Service Code is clear: officials carry out Ministers’ lawful instructions, whatever their personal views. But once the Bill is on the statute book, the Cabinet Secretary could say: “Refusing a reasonable instruction may be misconduct, Prime Minister, but Parliament has insisted that I perform my functions in the public interest at all times. An instruction to act contrary to the public interest cannot be reasonable. Therefore, my refusal to carry out this instruction is not misconduct, let alone gross misconduct”. Of course, the Prime Minister could sack the Cabinet Secretary nevertheless, but that would be more risky once the Bill becomes law, because the former official would in those circumstances have a stronger claim for unfair dismissal in an employment tribunal. Would the claim succeed? It may or it may not. An employment tribunal might well conclude that the instruction was reasonable, i.e. not contrary to the public interest— although that is surely a matter for the electorate and not a judge or a judicial panel. But that is not the point. The point is that Clause 1 would give the sacked official an arguable case. Thanks to Clause 1, the claim would be less likely to be struck out at a preliminary hearing than it would be at present. It would very probably proceed to a full hearing, at which a tribunal would be invited to rule on whether the elected Government’s central manifesto commitment was in the public interest. In all likelihood, the Government would settle. We know roughly what that would cost. The going rate for a negotiated departure of a Cabinet Secretary is now approaching £1 million; perhaps it will be more in due course, since the Employment Rights Act will remove the cap on compensation for unfair dismissal from 1 January next year. Who is to say that the Prime Minister would be able to find a replacement willing to carry out the instruction, particularly with the threat of a private prosecution looming over their heads? I expect the Minister to say two things in response. First, I expect him to say that a purpose clause does not, by itself, impose any duty on anyone. But courts and tribunals construe statutes purposively, and a purpose clause is one of the places they look to discern Parliament’s purpose, particularly where the operative provisions turn on open-ended words such as “proper”, “reasonable” and “seriously improper”. Secondly, the Minister may say that the Civil Service Code already requires officials to obey lawful instructions. That is quite so—but then the Government should have no difficulty confirming that nothing in Clause 1 qualifies the code, which is all my amendment would do. If the Government genuinely believe that Clause 1 creates no freestanding duty then accepting this amendment would cost them nothing. If the Minister will not accept it, I ask for an assurance when he responds that nothing in Clause 1 imposes a duty on any official, justifies them departing from a lawful ministerial instruction or in any way qualifies the Civil Service Code. Voters are not disillusioned with politicians because they are corrupt; they are disillusioned because politicians promise to fix things, such as the shortage of affordable housing, and then discover when they achieve office that they lack the power to do so. It was reported that Sir Keir Starmer complained privately that, when he pulled the levers in Number 10, nothing happened. This Bill unamended, or without suitable assurance from the Dispatch Box, would make that situation worse, not better. I beg to move.