Scotland Bill

My Lords, normal service has roughly been resumed. Having spoken against the proposition put by my noble friend on the last amendment, I am now right with him. His contribution touches on two issues. One is the actual behaviour of civil servants in aligning themselves with a particular political agenda, and the other is the more nuanced issue of how civil servants should behave in a devolved structure. They are slightly different. On the first one, I would have thought it preferable that a civil servant, certainly a senior civil servant, should say nothing in public on any contentious political issue at all. They should say and do nothing that would make it impossible for that person to work with an incoming Administration. If we get that polarisation of politicians and civil servants divided on one side or the other, we would be moving towards an American system, which I think is to be avoided at all costs. I want to say more about the role of civil servants in a devolved system. Of course one says immediately that their role is to support Ministers, engage in policy development and do all those things that, on the whole, we know they do extremely well. But devolution brings a unique and arcane issue to the fore. We have not faced it before because we have had a United Kingdom Government, but now with devolution the issue that comes into play is that of vires. The question is this: to what extent and how should any civil servant advise a Minister on a policy area that is outwith the vires that he enjoys? That is an important and sensitive issue to try to tease out. I do not think that the amendment as it stands can work because the 1998 Act clearly indicates that there is a mechanism by which reserved powers can be devolved to the Scottish Parliament, and in that circumstance there would have to be discussions between Scottish Ministers and civil servants on a devolved matter, so it is not quite as simple as I and my noble friend thought initially. However, in Schedule 5 to the 1998 Act we find that the constitution is a reserved matter, as is, "““the Union of the Kingdoms of Scotland and England””." It would seem that the senior civil servant in Scotland is giving policy advice and dealing with policy development in that area. So if it is good for that, is it good for other areas of the devolved agenda? I turn to just one, that of defence. The Act states: "““The following are reserved matters … international headquarters and defence organisations””." One of the defence organisations is NATO. Would it be right and proper for a civil servant in Scotland to advise SNP Scottish Ministers on how they could secure their policy objective of Scotland no longer being a member of NATO? That is a question which I think ought to be asked, and for a whole number of other major issues in the reserved areas it has to be asked whether it is proper in any sense for a civil servant to give advice on how the policy of the Government and the Parliament that properly have responsibility in that area should be thwarted. Just think of what would happen the other way around. If it became known that civil servants in Whitehall departments were advising their Ministers on how they could undermine Ministers in Scotland, it would be a constitutional outrage. I recognise that this is a difficult and sensitive subject, but it is one that we will have to face up to and, it is hoped, we will be able to secure a resolution that proper discussion should take place, but not something that is aimed at absolutely undermining the devolution settlement itself.