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Committee of the whole House: 4 November 2009            

1519

 

Constitutional Reform and Governance Bill, continued

 
 

David Howarth

 

Mr David Heath

 

28

 

Page  48,  line  1,  leave out Schedule 4.

 


 

David Howarth

 

Mr David Heath

 

35

 

Clause  56,  page  27,  line  35,  at end insert—

 

‘(3A)    

Subsection (3) is subject to section [Commencement of Part 3].’.

 


 

Remaining New Clauses

 

Mental Health Act 1983

 

Mr Mark Harper

 

Lynne Jones

 

NC1

 

To move the following Clause:—

 

‘(1)    

The Mental Health Act 1983 is amended as follows.

 

(2)    

Subsections (2) to (7) of section 141 are deleted.’.

 


 

Ban on Attorney General directions in individual cases

 

David Howarth

 

Mr David Heath

 

Lynne Featherstone

 

NC2

 

To move the following Clause:—

 

‘(1)    

The Attorney General’s function of superintendence of the Directors does not

 

include power to give a direction in relation to an individual case.

 

(2)    

In this section and in section [Protocol for running of prosecution services] “the

 

Directors” means—

 

(a)    

the Director of Public Prosecutions;

 

(b)    

the Director of the Serious Fraud Office;

 

(c)    

the Director of Revenue and Customs Prosecutions.’.

 



 
 

Committee of the whole House: 4 November 2009            

1520

 

Constitutional Reform and Governance Bill, continued

 
 

Protocol for running of prosecution services

 

David Howarth

 

Mr David Heath

 

Lynne Featherstone

 

NC3

 

To move the following Clause:—

 

‘(1)    

The Attorney General must, in consultation with the Directors, prepare a

 

statement (a “protocol”) of how the Attorney General and the Directors are to

 

exercise their functions in relation to each other.

 

(2)    

The protocol may in particular includes provisions as to—

 

(a)    

the general responsibilities of the Attorney General and each of the

 

Directors;

 

(b)    

the arrangements for ensuring that the Attorney General is properly

 

advised on matters relating to the strategic direction of the prosecution

 

services and on matters affecting more than one prosecution service;

 

(c)    

the circumstances in which the Attorney General is to be consulted or

 

provided with information;

 

(d)    

the objectives of the prosecution services;

 

(e)    

the way in which the objectives are set and the means by which their

 

achievement or otherwise is reviewed;

 

(f)    

the roles of the Attorney General and the Directors in relation to criminal

 

justice policy;

 

(g)    

the way in which matters relating to the accountability of the Attorney

 

General to Parliament for the prosecution services are to be handled;

 

(h)    

the roles of the Attorney General and the Directors in relation to dealings

 

with representatives of the press and other media;

 

(i)    

procedures for dealing with complaints relating to the prosecution

 

services.

 

(3)    

The Attorney General must lay the protocol before Parliament.

 

(4)    

The protocol shall come into force when a resolution approving it has been passed

 

by each House of Parliament.

 

(5)    

The Attorney General must from time to time review the protocol and may, in

 

consultation with the Directors, revise it.

 

(6)    

If the protocol is revised, the procedure in (3) and (4) above applies.

 

(7)    

The Attorney General and the Directors must have regard to any relevant

 

provisions of the protocol when carrying out their functions.

 

(8)    

“The prosecution services” means the Crown Prosecution Service, the Serious

 

Fraud Office and the Revenue and Customs Prosecutions Office.’.

 


 

Director of Public Prosecutions

 

David Howarth

 

Mr David Heath

 

Lynne Featherstone

 

NC4

 

To move the following Clause:—


 
 

Committee of the whole House: 4 November 2009            

1521

 

Constitutional Reform and Governance Bill, continued

 
 

‘(1)    

The Director of Public Prosecutions—

 

(a)    

is appointed by the Attorney General, and

 

(b)    

subject to what follows, holds office in accordance with the terms of the

 

appointment.

 

(2)    

The Director must have a 10 year general qualification, within the meaning of

 

section 71 of the Courts and Legal Services Act 1990 (c. 41).

 

(3)    

Service as the Director is service in the civil service of the State.

 

(4)    

There is to be paid to the Director such remuneration as the Attorney General

 

may, with the approval of the Minister for the Civil Service, determine.

 

(5)    

Any appointment under subsection (1) must be for a term of five years.

 

(6)    

The Director may at any time resign by notice in writing to the Attorney General.

 

(7)    

The Attorney General may remove the Director from office only if satisfied that

 

the Director is unable, unfit or unwilling to carry out the functions of the office.

 

(8)    

The factors which the Attorney General may take into account in determining

 

whether the Director is unfit to carry out the functions of the office include in

 

particular—

 

(a)    

failure by the Director to comply with section [Protocol for running of

 

prosecution services] (7) (duty to have regard to relevant provisions of

 

protocol), and

 

(b)    

failure by the Director to perform the functions of the office efficiently

 

and effectively.’.

 


 

Director of the Serious Fraud Office

 

David Howarth

 

Mr David Heath

 

Lynne Featherstone

 

NC5

 

To move the following Clause:—

 

‘(1)    

The Director of the Serious Fraud Office—

 

(a)    

is appointed by the Attorney General, and

 

(b)    

subject to what follows, holds office in accordance with the terms of the

 

appointment.

 

(2)    

Service as the Director is service in the civil service of the State.

 

(3)    

There is to be paid to the Director such remuneration as the Attorney General

 

may, with the approval of the Minister for the Civil Service, determine.

 

(4)    

Any appointment under subsection (1) must be for a term of five years.

 

(5)    

The Director may at any time resign by notice in writing to the Attorney General.

 

(6)    

The Attorney General may remove the Director from office only if satisfied that

 

the Director is unable, unfit or unwilling to carry out the functions of the office.

 

(7)    

The factors which the Attorney General may take into account in determining

 

whether the Director is unfit to carry out the functions of the office include in

 

particular—

 

(a)    

failure by the Director to comply with section [Protocol for running of

 

prosecution services] (7) (duty to have regard to relevant provisions of

 

protocol), and


 
 

Committee of the whole House: 4 November 2009            

1522

 

Constitutional Reform and Governance Bill, continued

 
 

(b)    

failure by the Director to perform the functions of the office efficiently

 

and effectively.’.

 


 

Director of Revenue and Customs Prosecutions

 

David Howarth

 

Mr David Heath

 

Lynne Featherstone

 

NC6

 

To move the following Clause:—

 

‘(1)    

The Director of Revenue and Customs Prosecutions—

 

(a)    

is appointed by the Attorney General, and

 

(b)    

subject to what follows, holds office in accordance with the terms of the

 

appointment.

 

(2)    

The Director must have a 10 year general qualification, within the meaning of

 

section 71 of the Courts and Legal Services Act 1990 (c. 41).

 

(3)    

Service as the Director is service in the civil service of the State.

 

(4)    

There is to be paid to the Director such remuneration as the Attorney General

 

may, with the approval of the Minister for the Civil Service, determine.

 

(5)    

Any appointment under subsection (1) must be for a term of five years.

 

(6)    

The Director may at any time resign by notice in writing to the Attorney General.

 

(7)    

The Attorney General may remove the Director from office only if satisfied that

 

the Director is unable, unfit or unwilling to carry out the functions of the office.

 

(8)    

The factors which the Attorney General may take into account in determining

 

whether the Director is unfit to carry out the functions of the office include, in

 

particular—

 

(a)    

failure by the Director to comply with section [Protocol for running of

 

prosecution services] (7) (duty to have regard to relevant provisions of

 

protocol), and

 

(b)    

failure by the Director to perform the functions of the office efficiently

 

and effectively.’.

 


 

Ending of prosecution consent functions of Attorney

 

David Howarth

 

Mr David Heath

 

Lynne Featherstone

 

NC7

 

To move the following Clause:—

 

‘(1)    

All provisions under any enactment that give the Attorney General a prosecution

 

consent function shall be read as giving that prosecution consent function

 

insetead to the Director of Public Prosecutions.

 

(2)    

For the purposes of this section the Attorney General has a prosecution consent

 

function under an enactment if under that enactment—


 
 

Committee of the whole House: 4 November 2009            

1523

 

Constitutional Reform and Governance Bill, continued

 
 

(a)    

proceedings for an offence may not be instituted except by, or with the

 

consent of, the Attorney General (or by, or with the consent of, the

 

Attorney General or one or more other persons), or

 

(b)    

the Attorney General (or the Attorney General or one or more other

 

persons) has a function of giving a consent to the taking of any other step

 

in connection with proceedings for an offence.

 

(3)    

In subsection (1) and sections 12 and 13, “offence” includes a service offence as

 

defined by section 50 of the Armed Forces Act 2006 (c. 52) (and the reference in

 

section 13(4) to a court includes a reference to a service court within the meaning

 

of section 324(4) of the 2006 Act).’.

 


 

Abolition of nolle prosequi

 

David Howarth

 

Mr David Heath

 

Lynne Featherstone

 

NC8

 

To move the following Clause:—

 

‘The power of the Attorney General to enter a nolle prosequi is abolished in

 

relation to proceedings in England and Wales.’.

 


 

Factors to be taken into account when determining whether a body is a public authority

 

Mr Andrew Dismore

 

NC12

 

To move the following Clause:—

 

‘For the purposes of subsection (3)(b) of section 6 of the Human Rights Act 1998

 

(c. 42) (acts of public authorities), the factors which must be taken into account

 

in determining whether a function is a function carried out by a public authority

 

include—

 

(a)    

the extent to which the state has assumed responsibility for the function

 

in question;

 

(b)    

the role and responsibility of the state in relation to the subject matter in

 

question;

 

(c)    

the nature and extent of the public interest in the function in question;

 

(d)    

the nature and extent of any statutory power or duty in relation to the

 

function in question;

 

(e)    

the extent to which the state, directly or indirectly, regulates, supervises

 

or inspects the performance of the function in question;

 

(f)    

the extent to which the state makes payment for the function in question;

 

(g)    

whether the function involves or may involve the use of statutory

 

coercive powers;


 
 

Committee of the whole House: 4 November 2009            

1524

 

Constitutional Reform and Governance Bill, continued

 
 

(h)    

the extent of the risk that improper performance of the function might

 

violate an individual’s Convention right.’.

 


 

Meaning of public authority

 

Mr Andrew Dismore

 

NC13

 

To move the following Clause:—

 

‘For the avoidance of doubt, for the purposes of section 6(3)(b) of the Human

 

Rights Act 1998, a function of a public nature includes a function which is

 

required or enabled to be performed wholly or partially at public expense,

 

irrespective of—

 

(a)    

the legal status of the person who performs the function, or

 

(b)    

whether the person performs the function by reason of a contractual or

 

other agreement or arrangement.’.

 


 

Ministers to be able to appear in either House

 

Mr Douglas Hogg

 

NC26

 

To move the following Clause:—

 

‘Standing Orders of the House of Commons and House of Lords shall make

 

provision under which either House may pass in relation to any person being a

 

Minister of the Crown but not being a Member of that House a resolution

 

whereby that person or any such person may be enabled to participate in the

 

proceedings of the House, save that the resolution shall not permit such a person

 

to vote in any proceedings in the House.’.

 


 

Selection of a Prime Minister

 

Mr Douglas Hogg

 

NC27

 

To move the following Clause:—

 

‘Within two days of the meeting of a new Parliament following a General

 

Election or within 25 days of the death or the resignation of a serving Prime

 

Minister the House of Commons shall order an Address to be presented to Her


 
 

Committee of the whole House: 4 November 2009            

1525

 

Constitutional Reform and Governance Bill, continued

 
 

Majesty naming one of its Members and asking Her Majesty to invite that

 

Member to form a Government.’.

 


 

Fixed term parliaments

 

Mr Douglas Hogg

 

NC28

 

To move the following Clause:—

 

‘(1)    

Except as provided for in subsection (2) below a General Election shall take place

 

every five years on the first Thursday in June.

 

(2)    

In the event that Her Majesty dissolves Parliament following the defeat of the

 

government of the day on a motion of no confidence or on such other motion as

 

causes the Prime Minister to advise Her Majesty to dissolve Parliament,

 

subsection (1) shall have no effect and the General Election next after that caused

 

as a result of such a dissolution shall be held five years after the date on which the

 

General Election immediately following the dissolution was held.’.

 


 

War powers

 

Mr Douglas Hogg

 

NC29

 

To move the following Clause:—

 

‘(1)    

Subject to subsection (2) below United Kingdom armed forces shall not be

 

committed abroad in circumstances in which it is likely that they will be involved

 

in hostilities unless prior to that deployment both the House of Commons and the

 

House of Lords shall have approved that deployment and its duration, purpose

 

and character.

 

(2)    

Where it is not reasonably practicable to secure a vote of both Houses of

 

Parliament before deployment overseas in the circumstances set out above, the

 

requirements of subsection (1) shall be deemed to be satisfied if within 20 days

 

of the initial deployment both Houses of Parliament shall have approved that

 

deployment, and its duration, purpose and character; and in the event that the

 

requirements of this subsection are not satisfied such armed forces as have been

 

deployed shall as soon as reasonable practicable return to the United Kingdom or

 

to such other bases from which they may have been deployed.’.

 



 
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