House of Commons - Constitutional Affairs

Select Committee on Constitutional Affairs Second Report

2 Objectives and tasks

Objective A: to examine and comment on the policy of the Department

TASK 1: TO EXAMINE POLICY PROPOSALS FROM THE UK GOVERNMENT AND THE EUROPEAN COMMISSION IN GREEN PAPERS, WHITE PAPERS, DRAFT GUIDANCE ETC, AND TO INQUIRE FURTHER WHERE THE COMMITTEE CONSIDERS IT APPROPRIATE

25. The Government presented an Armed Forces Bill on 30th November 2005, to bring into effect its five yearly renewal of the Service Discipline Acts, which proposed significant changes in the court martial system and dealt with a number of other issues on which we took written and oral evidence. We published our conclusions as our Second Report.[13]

26. We examined the Government's proposals relating to Reform of the Coroners System and Death Certification in England and Wales, including the Draft Coroners Bill. The Draft Bill was the product of a position paper published by the Government on Reforming the Coroner and Death Certification Service in March 2004 (Cm 6159) in response to the Third Report of the Shipman Inquiry (under Dame Janet Smith) and the Report of a Fundamental Review 2003 into Death Certification and Investigation (under Tom Luce). The position paper had stated that a Draft Bill and White Paper would be produced within one year. The draft Bill was in fact produced on the 12th June 2006. If we had not started taking initial evidence on this subject in February 2006, we suspect that we would still have been waiting to see the Draft Bill.

27. Our main conclusions were that:

although the Government's draft Bill would do much to improve the coronial system, it would do nothing to remedy the critical defects in the death certification system;.
because neither DCA nor the Department of Health was taking responsibility for death certification, the changes represented a tinkering with the system rather than the root and branch reform which was required;
the system of death investigation and certification was out of date; and
the coronial system needed national direction with properly organized resources.

28. The system of coroners and death certification is in urgent need of reform on at least two counts: there is enormous variation in standards, and the system clearly failed to detect a major serial murderer. The Draft Bill was therefore an opportunity not to be wasted: we strongly recommended that the Government rethink its plans, and that it incorporate reform of death certification. We note that was no Coroners Reform Bill in the Queen's Speech. We hope that the Government will bring forward improved proposals for significant reform in the near future.

29. Our Third Report[14] and Fifth Report[15] dealt with proposals contained in the Compensation Bill [Lords] and the NHS Redress Bill [Lords] respectively. The subject matter of both inquiries overlapped - the Fifth Report was in effect a supplement to the Third Report and relied on evidence taken in the course of the compensation culture inquiry.

30. The inquiry into the compensation culture was wide ranging and allowed us the opportunity to consider the functioning of conditional fee arrangements (CFAs) and whether sufficient was being done to tackle risk aversion in public bodies. Our principal conclusion about the Compensation Bill [Lords] was that clause 1, which was supposed to protect people who undertake desirable or useful activities from being sued, was redundant and should be scrapped. We welcomed the Government's proposals to regulate 'claims farmers' — the organisations that act as brokers referring claims to solicitors and often selling some financial service in the process — although they lacked detail.

31. We were surprised that the Department of Health had produced an ambitious compensation scheme in the NHS Redress Bill [Lords] without setting out any of the detail of how it would be run. During the course of the inquiry, the NHS' own Litigation Authority still did not know whether it would definitely be responsible for running the Redress Scheme.

TASK 2: TO IDENTIFY AND EXAMINE AREAS OF EMERGING POLICY, OR WHERE EXISTING POLICY IS DEFICIENT, AND MAKE PROPOSALS

32. The Committee agreed to take evidence from the Legal Services Commission in response to its announcement of withdrawal of Specialist Support Services. We focused on the services provided by Specialist Support Services, the way in which the decision to end the scheme was reached and alternative approaches suggested by the LSC. We were concerned that the oral evidence from the Legal Services Commission revealed major flaws in its approach to policymaking. We drew the particular attention of the House to the oral evidence accompanying our Report. Mr Harvey, the acting Chief Executive of the Legal Services Commission, admitted that the consultation strategy had been flawed, since at no point prior to the decision being made had the relevant stakeholders been informed that one option was to cease funding Specialist Support Services. He also admitted that the Commission had made the decision without consulting the Welsh Assembly (which contributes funding to advice provision in Wales).

33. Following publication of our Report, Mr Harvey wrote to the Chairman on 22 March 2006:

"I am writing to inform you that the Commission has given careful consideration to the concerns raised since our decision, communicated on 16 January this year, to terminate the CLS Specialist Support contracts. In the light of that consideration, in particular consideration of the process of consultation that was undertaken, the Commission has decided to review its decision. Accordingly, we have today written to all Specialist Support contract holders to inform them of this."[16]

This represents a significant victory for the Committee in bringing about a reversal in LSC policy. We were pleased that the LSC decided to review its decision and withdraw its plan to end specialist support services.

TASK 3: TO CONDUCT SCRUTINY OF ANY PUBLISHED DRAFT BILL WITHIN THE COMMITTEE'S RESPONSIBILITIES

34. We have already mentioned our scrutiny of the Draft Coroners Bill.[17]

TASK 4: TO EXAMINE SPECIFIC OUTPUT FROM THE DEPARTMENT EXPRESSED IN DOCUMENTS OR OTHER DECISIONS

35. We have already referred to evidence from the Lord Chancellor on general policy issues relating to the Department and from the Permanent Secretary on the DCA Departmental Report.

Objective B: to examine the expenditure of the Department

TASK 5: TO EXAMINE THE EXPENDITURE PLANS AND OUTTURN OF THE DEPARTMENT, ITS AGENCIES AND PRINCIPAL NDPBS

36. The Committee took evidence from the Electoral Commission as part of a short inquiry into the Electoral Administration Bill and in furtherance of the core task of Departmental scrutiny including the activities of non-departmental bodies which come under the policy ambit of the Department for Constitutional Affairs. The session was followed by a session with electoral administrators after the Committee of the whole House stage but before remaining stages of the Bill were taken in the Chamber. Our work on party funding led to our making recommendations (published in Session 2006-07) about the future constitution and area of operations of the Electoral Commission.[18]

Objective C: to examine the administration of the Department

TASK 6: TO EXAMINE THE DEPARTMENT'S PUBLIC SERVICE AGREEMENTS, ITS ASSOCIATED TARGETS AND THE STATISTICAL MEASUREMENTS EMPLOYED, AND REPORT IF APPROPRIATE

37. In conjunction with the Scrutiny Unit, the Committee Staff prepared detailed questions on the DCA's Departmental Annual Report for 2005 and for the Winter and Spring Supplementary Estimates for written answer by the Department, focusing on PSA targets. We took oral evidence on the latest Departmental Annual Report on 17^th October 2006.

38. DCA Key Policies were examined on three occasions with oral evidence from the Lord Chancellor and others. On 18th October 2005 a session explored issues raised by the Lord Chancellor's paper Making a difference, taking forward our priorities[19] which set out the Government's political priorities in the new Parliament.[20] We discussed matters of general policy and also the functions of the DCA as a Department of State and in particular followed up recommendations made by our predecessor Committee in the previous Parliament relating to judicial appointments, freedom of information and anti-terrorist legislation. Other issues raised included: the operation of the criminal justice system; the compensation culture; broadcasting court proceedings; and constitutional matters.

39. On 28th February 2006 we raised a wide range of topics with the Lord Chancellor, including constitutional reform, freedom of information, human rights, asylum and immigration and the proposed reforms to the provision of legal services including Legal Aid (The Carter Review).

40. On 4th July 2006 we questioned the Lord Chancellor about the Government's relations with the judiciary, the operation of the Human Rights Act 1998 and the European Convention on Human Rights. In particular, we focused on issues relating to the deportation of potential terrorist suspects, difficulties with the Prevention of Terrorism Act 2005, potential amendments to the Human Rights Act 1998 and the consequences of any move to repeal the latter Act. We also followed up issues relating to the Carter Review that were first raised at the session with the Lord Chancellor in October 2005.

TASK 7: TO MONITOR THE WORK OF THE DEPARTMENT'S EXECUTIVE AGENCIES, NDPBS, REGULATORS AND OTHER ASSOCIATED PUBLIC BODIES

41. The court system is the chief area of associated public bodies linked with the DCA. Our First Report: The courts - small claims focused on the treatment of small claims in The County Courts.[21] The main conclusions were that:

the Government should review the maximum limits set on the small claims system in the county courts (which had not been adjusted for inflation for some time);
the enforcement procedure was extremely unsatisfactory;
the proposed European Small Claims Procedure might well be useful as long as it was confined to cross-border claims, although it is possible that any benefit might be swallowed up by increased costs; and
the courts IT system needed to be improved.

TASK 8: TO SCRUTINISE MAJOR APPOINTMENTS MADE BY THE DEPARTMENT

42. We are specifically not allowed to examine individual judicial appointments under Standing Order 152, but we took oral evidence from the newly established Judicial Appointments Commission. The Judicial Appointments Commission (JAC) was created on 3 April 2006 as a result of the Constitutional Reform Act 2005. We were particularly interested in policy issues such as the accountability of the new Commission, the assessment of 'merit' and how the Commission intends to widen the pool of candidates applying for positions. We intend to examine in future sessions the way in which the Commission is staffed and its continuing links with the Department for Constitutional Affairs.

TASK 9: TO EXAMINE THE IMPLEMENTATION OF LEGISLATION AND MAJOR POLICY INITIATIVES

43. One of the substantial pieces of work done by our predecessor Committee in the last Parliament was its Report on Family Justice.[22] We returned to this issue. The Report had been well received and had made a number of recommendations, particularly relating to transparency of proceedings in the family courts. We took evidence to assess how the Committee's recommendations were being taken forward and questioned senior members of the judiciary about the operation of the family courts.

44. In our Report we called for an increase in transparency in the family courts involving decisions on adoption, residence and contact with children in cases when parents are separating and about removing children from their parents when they are considered to be at risk. We proposed that judges would retain power to impose reporting restrictions or exclude members of the public, where necessary, to protect the child and the interest of justice. We also criticized the lack of resources for Family Courts.

45. We also followed up on the work of the Committee in the previous Parliament on implementation of the Freedom of Information Act 2000, for which the Department for Constitutional Affairs is the lead Department. This had been on the basis of a snapshot of three areas: the Police; the National Health Service; and Local Government. With just less than a month to go before the Act became fully operational, our predecessor Committee had found that readiness for implementing the Act day from central Government departments appeared to be "patchy".

46. In our inquiry into "Freedom of Information - one year on" we invited the DCA to give an overview of the first year of Freedom of Information (FOI) implementation and reviewed the DCA's performance with regard to its responsibilities for FOI implementation. We examined what steps the DCA was taking to resolve implementation problems and discussed what further steps it could take. We published our conclusions as our Seventh Report.[23] We identified significant problems with the time taken for some requestors is to obtain answers, with internal reviews in some organisations being delayed indefinitely and too long being taken to assess public interest factors. We noted that the complaints resolution process administered by the Information Commissioner took months to complete. We were not convinced that sufficient resources had been allocated to deal with the work in hand.

47. One of our continuing interests is the treatment of appeals relating to asylum and immigration cases. We took evidence from Mr Justice Hodge, the President of the Asylum and Immigration Tribunal, and Mr Justice Collins, the Lead Judge in the Administrative Court, on immigration and asylum appeals in the new Asylum and Immigration Tribunal (which started operating in April 2005) and the impact of the new system on the Administrative Court.

Objective D: to assist the House in debate and decision

TASK 10: TO PRODUCE REPORTS WHICH ARE SUITABLE FOR DEBATE IN THE HOUSE, INCLUDING WESTMINSTER HALL, OR DEBATING COMMITTEES

48. An important part of the Committee's role has been to examine proposals for legislation, either in draft or as a Bill was proceeding through Parliament. As we note above, we have contributed to debate on several Bills: Armed Forces Bill[24]; Immigration, Asylum and Nationality Bill[25]; Compensation Bill[26]; NHS Redress Bill [Lords][27]; Electoral Administration Bill[28]; and Criminal Defence Service Bill[29].

49. Two of the Committee's Reports were debated in Westminster Hall - on 12th January 2006 the Report Family Justice: the operation of the family courts[30] and on 30th March 2006 the report The courts: small claims.[31]

50. Reports and Oral and Written Evidence were tagged on the Order Paper as being relevant to debate in the House on 15 occasions, in each case when legislation was being debated.

All tasks: the extent to which systematic structure is in place for meeting the indicative tasks listed, and response of department

51. Constitutional change has been at the forefront of political debate in the past year and it is likely to remain a matter of significant public interest in the coming year. We shall continue to play our role to the full in raising the quality of debate about the difficult issues involved. However, we have a wide remit which includes more than simply legal or constitutional topics. This places great demands on our resources. As in previous years, we have relied on the Committee Office Scrutiny Unit; we could not have achieved nearly as much without its assistance, which provided a source of expertise for both Government finance and examination of draft legislation. The Unit provided the inquiry manager for our examination of the draft Coroners Bill and our inquiry into Freedom of Information as well as assistance in relation to the DCA's Annual Report.

13 Constitutional Affairs Committee, Second Report of Session 2005-06, The Office of the Judge Advocate General, HC 731 Back

14 Constitutional Affairs Committee, Third Report of Session 2005-06, Compensation Culture, HC 754-l and -ll Back

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

16 Constitutional Affairs Committee, First Special Report of Session 2005-06, Legal Services Commission' s response to the Fourth Report on removal of Specialist Support Services, HC 1029 Back

17 Constitutional Affairs Committee, Eighth Report of Session 2005-06, Reform of the coroners' system and death certification, HC 902-l and -II Back

18 Constitutional Affairs Committee, First Report of Session 2006-07, Party Funding, HC 163-I and -II Back

19 Department for Constitutional Affairs, Making a Difference, taking forward our priorities, May 2005 Back

20 HC (2005-06) 566-l Back

21 Constitutional Affairs Committee, First Report of Session 2005-06, The Courts: Small Claims, HC 519 Back

22 Constitutional Affairs Committee, Fourth Report of Session 2004-5, Family Justice: the operation of the family courts, HC 116 -l and -ll Back