House of Commons - Constitutional Affairs

Select Committee on Constitutional Affairs Second Report

1 Introduction

1. This Report is a review of the work of the Constitutional Affairs Committee in Session 2005-06. We discuss the Committee's main area of work in general terms in the introductory section, identifying specific areas of interest; in the second section we describe in greater detail the Committee's performance in relation to the indicative "core tasks" for departmental select committees specified by the Liaison Committee. Table 3 in the Annex to this Report sets out the relevant Liaison Committee criteria covered by the particular inquiries in the past Session.

2. Our principal remit under House of Commons Standing Order No. 152 is to examine the expenditure, administration and policy of the Department for Constitutional Affairs (DCA). The DCA describes itself as being "responsible in government for upholding justice, rights and democracy". Its responsibilities cover:

Justice - running the courts and improving the justice system;
Rights - human rights and information rights law;
Democracy - law and policy on running elections and modernising the constitution.

A significant part of the DCA's responsibilities includes Freedom of Information policy.

Scope of work and follow-up

3. The Constitutional Affairs Committee is a relatively recently established committee, having been set up in 2003, and in the previous Parliament it concentrated on establishing itself as an influential voice in public debates relating to its subject matter. It succeeded in doing this and in the last year it continued to maintain an active role leading debate in its core subject area. Although the membership of the Committee has largely (though not entirely) changed, we are very happy that we have been able to build on the substantial work of the Committee in previous sessions. Where appropriate, we have returned to subjects examined in the previous Parliament to measure progress with the development of policy or implementation of reforms: in particular, in the areas of constitutional reform; asylum and immigration appeals; Family Justice; and Freedom of Information. We set out the specific areas of inquiry in Table 1 of the Annex at the end of this Report.

Co-operation with other Committees

4. We co-operated with the Home Affairs Committee by holding two joint evidence sessions (both on the same day), exploring the impact of the Human Rights Act 1998 on Government policy-making. We took oral evidence from Professor Francesca Klug of the LSE, Jonathan Fisher QC, Rabinder Singh QC, Lord Justice Maurice Kay, the Lord Chancellor and Lady Scotland of Asthal QC. We are grateful to the Lord Chief Justice for agreeing to the attendance of Lord Justice Kay.

5. This proved a very useful and informative occasion, not least due to the oral evidence contributed by Lord Justice Maurice Kay. In questioning him we were careful to avoid matters on which it would be inappropriate for a serving judge to make public comment, but we found that nonetheless it was possible for us to take some stimulating and useful evidence on the role and functions of the judiciary.

Contribution to the process of legislation

DRAFT BILLS

6. We are firmly committed to the system of examination of Draft Bills. We believe that this is an extremely useful way of harnessing Committee expertise in order to improve the quality of legislation.

7. In the last Report on the activities of the Committee, published in the previous Parliament, our predecessors pointed out that the delay in delivery of the Draft Criminal Defence Service Bill significantly affected the ability of the Committee to examine the Government's proposals properly:

"Initially, we had some difficulty in getting a text of the draft Bill from the Department. We came very close to being unable to conduct the inquiry because of the late appearance of the draft Bill. We understand that the late production of draft Bills is a common experience with other Committees and we hope that the Liaison Committee will continue to pursue this matter."[1]

8. During session 2005/06 we examined the Draft Coroners Bill in the course of our inquiry into Reform of the Coroners System and Death Certification. It is a matter of regret that on this occasion the production of the Draft Bill was considerably delayed. As we noted in our Report:

"Although we had intended to conduct pre-legislative scrutiny of the draft Bill, the DCA published it so late that any review leading to a report before the summer was inevitably limited. Publication of the draft Bill the day before the first oral evidence session was wholly unsatisfactory since witnesses were unable to give evidence on its detailed provisions."[2]

9. The late production of the Draft Bill prevented us from carrying out proper scrutiny of the Government's proposals in the way in which the Draft Bill system expects. We were able to go some way towards examining the contents of the Draft Bill but were not able to look at it in as much detail as it merited. When we see the final Bill (if one is ever produced) we will complete the inquiry; we regard our Report on the Government's proposals as only being interim.

"LIVE" BILLS

10. As with the Committee in the previous Parliament, we did not limit our examination of legislation to Draft Bills. As part of our work on the Compensation Culture, we published a short supplementary Report into specific matters relating to the NHS (Redress) Bill [Lords].[3]

11. When the Armed Forces Bill was published, we took evidence from the Judge Advocate General about the proposals contained in the Bill relating to changes to the Courts Martial system.

12. The following legislation in Session 2005/06 was informed by the work of the Committee (or the Committee in the last Parliament) with Reports being "tagged" as being relevant to debate:

Compensation Bill [Lords][4];
Electoral Administration Bill[5];
Criminal Defence Service Bill[6];
Immigration, Asylum and Nationality Bill[7]; and
Children and Adoption Bill[8].

Relations between the judiciary and Parliament

13. In the Report on the Work of the Committee in 2004 our predecessors in the last Parliament reported that the Committee had established itself as a major conduit for the expression of the judiciary's experience and views on the working of the judicial system and on wider policy matters[9]. We have continued this process of establishing the Committee as one of the primary links between the judiciary and Parliament. The rapidly changing nature of the Constitution has meant that judges are increasingly involved in giving evidence to Select Committees and, as a result, in cooperation with the authorities in both Houses, new Guidelines on judges giving oral evidence have been developed by the Lord Chief Justice.

14. Nine members of the judiciary (and also two coroners) gave oral evidence to us in the period covered by this Report on a wide range of issues: some judges came more than once[10]. We are grateful to all of them for the contribution which they made to our inquiries.

15. In addition to our normal evidence-taking activities, on 8 February 2006 we held an evening reception where Rt Hon Lord Woolf, the former Lord Chief Justice, gave a speech entitled Judges, Parliament and the Government—the new relationship. Lord Woolf subsequently agreed that a transcript of his lecture could be distributed.[11]

Scrutinising the Department

16. We continued our normal practice of taking evidence from the Lord Chancellor (accompanied by Mr Alex Allan, the Permanent Secretary of the Department) on the DCA's Key Policies. We did this as our first evidence session after the Committee was established and on two occasions subsequently.

17. On a separate occasion we took evidence from the Permanent Secretary on the DCA Departmental Report.

Relations with the Department

18. Relations with the Department continue to be good and have developed satisfactorily. There are regular liaison meetings with the DCA staff and the staff of the Committee. We note with approval the practice of Bill teams briefing the Committee staff where necessary. It is particularly important to maintain such close relations when dealing with Draft Bills.

Constitutional change

19. In the previous Parliament this Committee examined the proposals contained in the Constitutional Reform Bill before it became law. We have continued to examine the impact of the changes which are now in force, in particular relating to the office of the Lord Chancellor and, in this connection, we have started an inquiry into the constitutional role of the Attorney General; in advance of reporting on this we have published an exchange of letters relating to the Attorney General's role in any prosecutions arising from issues connected with party funding.[12]

20. We have continued with our process of examination of important constitutional changes proposed by the Government or which have been the subject of public discussion. One of the major aspects of constitutional change which we have worked on has included proposals for reform of the arrangements for funding political parties. Although many commentators do not consider political parties as part of the Constitution, in any modern democracy they do, of course, play a vital role in ensuring that the constitutional system works. As such, although independent of the State in a formal sense, they play a vital role in ensuring that the legal arrangements of the constitution operate properly.

21. Following considerable public anxiety about the interplay of patronage and party funding we spent nine months on a detailed inquiry into Party Funding. We took evidence from the Lord Chancellor in April about the Government's plans for amending the Electoral Administration Bill, which was then in the House of Lords; we took evidence from other witnesses representing political parties, the Electoral Commission and academic commentators — including some evidence in private — on this important subject. We finished the Inquiry in the current Session.

Visits

22. We carried out several visits in the course of our inquiries, within the United Kingdom. In the course of our inquiry into Small Claims Courts, we visited County Courts in Wandsworth, Romford and Cambridge. Representatives of the Committee visited the coroner's court at the Medico-Legal Centre, Sheffield and subsequently Westminster Coroner's Court in connection with our inquiry into the Draft Coroners Bill. We combined a visit to the offices of the Scottish Information Commissioner St Andrew's (as part of our inquiry into Freedom of Information) with a visit to the Office of the Crown Agent in Edinburgh to inquire into matters relating to Scottish criminal and Fatal Accident practice. We also visited the offices of the Freedom of Information Commissioner in Wilmslow. A list of our visits is set out in Table 2 in the Annex to this Report.

Special problems

23. As we mention above, during our inquiry into Party Funding the Committee took evidence in private. It was essential that we were not prevented from completing our work in this important area of public policy while avoiding any possible interference with the continuing police inquiries affecting some of the potential witnesses who gave us evidence in relation to party funding. We took evidence in private from Deputy Assistant Commissioner (now Assistant Commissioner) John Yates about the scope of his inquiries and the potential for our work to interfere with his professional area of interest. The decision to take evidence in private and to defer publication of it was in response to concerns expressed by him.

24. When we took evidence from the Judge Advocate General on the operation of the Courts Martial system, the first trial to take place under the International Criminal Court Act (that of Colonel Mendonca) was being arranged. We took steps to ensure that no reference should be made to his particular case.

1 Constitutional Affairs Committee, Second Report of Session 2004-05, Work of the Committee 2003-04, HC 207, Para 30 Back

2 Constitutional Affairs Committee, Eighth Report of Session 2005-06, Reform of the coroners' system and death certification, HC 902, Para 5 Back

3 Constitutional Affairs Committee, Fifth Report of Session 2005-06, Compensation Culture: NHS Redress Bill, HC 1009 Back

4 Constitutional Affairs Committee, Third Report of 2005-06, Compensation Culture, HC 754, and the Government's response thereto (Cm 6784) Back

5 Constitutional Affairs Committee, Electoral Administration, Oral and Written Evidence, 2005-06, HC 640-l and -ll; Constitutional Affairs and ODPM: Housing, Planning, Local Government and the Regions Committees, First Joint Report of Session 2004-05, Electoral Registration, HC 243-I, -II and -III Back

6 Constitutional Affairs Committee, Fifth Report of Session 2003-04, Draft Criminal Defence Service Bill, HC 746 Back

7 Consitutional Affairs Committee, Second Report of Session 2002-03, Asylum and Immigration Appeals, HC 211, and the Government's response thereto (Cm 6236) Fifth Report of Session 2004-2005 on Legal Aid: Asylum Appeals, HC 276, and the Government's response thereto (Cm 6597) Back