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These notes refer to the Constitutional Reform and Governance Bill as introduced in the House of Commons on 20 July 2009 [Bill 142]
CONSTITUTIONAL REFORM AND GOVERNANCE BILL
EXPLANATORY NOTES
INTRODUCTION
1. These explanatory notes relate to the Constitutional Reform and Governance Bill as introduced in the House of Commons on 20 July 2009. They have been prepared by the Ministry of Justice, in conjunction with the Cabinet Office, the Foreign and Commonwealth Office, the Home Office and HM Treasury. These notes have been prepared in order to assist the reader of the Bill. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
OVERVIEW OF THE BILL
3. The Constitutional Reform and Governance Bill has 9 Parts and 9 Schedules. The explanatory notes are divided into 9 Parts, reflecting the structure of the Bill. A summary of each Part and background in relation to the Bill as a whole and each Part separately is provided below. Commentary on each Part is then set out in number order, with the commentary on the various Schedules included in the section to which they relate.
Bill 142-EN 54/4
SUMMARY
4. A summary of the Bill is set out below.
Part 1: The Civil Service
5. Part 1 of the Bill provides for:
- A power for the Minister for the Civil Service to manage the Civil Service, and a parallel power for the Secretary of State in relation to the Diplomatic Service;
- A requirement for a code of conduct for civil servants which specifically requires civil servants to carry out their duties in accordance with the core Civil Service values of integrity, honesty, objectivity and impartiality. There is also a requirement for a separate code of conduct for special advisers;
- The establishment of a Civil Service Commission with functions in relation to selections for appointments to the Civil Service and in relation to hearing complaints that the Civil Service and diplomatic service codes have been breached;
- A requirement for appointments to the Civil Service to be made on merit on the basis of fair and open competition;
- Requirements as to the appointment of Special Advisers. The appointments are to be exempt from the fair and open competition principle.
6. The new statutory Civil Service Commission will take on the functions of the existing Civil Service Commissioners. The Civil Service Commission will publish principles on the application of the fundamental requirement that selections for appointment be made on merit on the basis of fair and open competition, and will investigate complaints under the code of conduct for civil servants. The First Civil Service Commissioner and the other Civil Service Commissioners will be the members of the new Civil Service Commission. Transitional arrangements will enable those serving as Civil Service Commissioners automatically to move across to the new Commission when it becomes operational.
7. Whilst the draft Bill removes the prerogative powers for the management of the Civil Service, the prerogative will be retained in relation to security vetting and the management of the parts of the Civil Service of the State which will not be covered by the provisions in Part 1.
Part 2: Ratification of Treaties
8. Part 2 of this Bill puts Parliamentary scrutiny of treaty ratification on a statutory footing and gives legal effect to a resolution of the House of Commons or Lords that a treaty should not be ratified. This means that should the House of Commons take the view that the Government should not proceed to ratify a treaty, it can resolve against ratification and thus make it unlawful for the Government to ratify the treaty. The House of Lords will not be able to prevent the Government from ratifying a treaty, but if they resolve against ratification the Government will have to produce a further explanatory statement explaining its belief that the agreement should be ratified.
Part 3: The House of Lords
9. Part 3 of the Bill contains provisions to end the system of by-elections for making hereditary peers members of the House of Lords. It also contains provisions for the removal of members of the House of Lords in specified circumstances. The Bill provides that when a member of the House of Lords (a) is convicted of an offence and sentenced to a term of imprisonment exceeding one year or indefinitely, or (b) is made the subject of a bankruptcy restrictions order or undertaking (or equivalent in Scotland or Northern Ireland) or a debt relief restrictions order or undertaking, that person will cease to be a member of the House of Lords.
10. The Bill also provides a power for the House of Lords to discipline its members through either expulsion or suspension and to withhold a writ of summons from a member who has been expelled or suspended.
11. The Bill also provides for a peer, whether life or hereditary, to resign from the House. It also provides for peers who have resigned or been excluded from the House to disclaim the peerage.
Part 4: Public Order
12. Clause 32 of the Bill provides for the repeal of sections 132 to 138 of the Serious Organised Crime and Police Act 2005, thereby removing the distinct legislative framework for the policing of demonstrations around Parliament. Repeal of these sections will remove the requirement to give notice of demonstrations in the designated area around Parliament and the offence of holding such demonstrations without the authorisation of the Metropolitan Police Commissioner.
13. Clause 32 also gives effect to Schedule 4 which inserts new powers on maintaining access to Parliament into Part 2 of the Public Order Act 1986. Those provisions give the police discretionary powers to impose conditions on public processions or assemblies around Parliament in order to maintain access to and from the Palace of Westminster. Conditions may be imposed only where in the senior officer’s reasonable opinion they are necessary for ensuring that specified requirements are met in relation to maintaining access to Parliament. The requirements which may be specified in a Statutory Instrument might include requirements as to the number or location of entrances to the Palace of Westminster which must be kept open, and to and from which there must always be an access route for pedestrians and vehicles through the area around Parliament.
Part 5: Time Limits for Human Rights Actions Against Devolved Administrations
14. Part 5 of the Bill inserts a time limit for actions against the Northern Ireland Ministers or Departments under the Northern Ireland Act 1998 or against the Welsh Ministers under the Government of Wales Act 2006 where it is claimed that they have acted incompatibly with Convention rights.
Part 6: Courts and Tribunals
15. Part 6 of the Bill provides for:
a) a guarantee that the salaries of judicial office holders in certain tribunals may not be reduced;
b) a correction of a cross-reference in the Courts Act 1971;
c) the removal of the Prime Minister’s role in the process for appointing Supreme Court judges;
d) a new method of obtaining medical assessments from candidates for judicial office;
e) confidential information being disclosed to the police for specified purposes relating to the prevention or investigation of crime including for the purposes of criminal proceedings; and
f) the removal of magistrates from Schedule 14 to the Constitutional Reform Act 2005.
Part 7: National Audit
16. This part of the Bill modernises the governance arrangements for national audit. It continues the office of Comptroller and Auditor General (“C&AG”) as an independent officer of the House of Commons but limits the term of appointment to that office to ten years. It provides for the establishment of a new corporate body, the new National Audit Office (“NAO”), whose functions will include providing resources for the C&AG’s functions, monitoring the carrying out of those functions and approving the provision of certain services. In common with most other corporate structures, the NAO will have a majority of non-executives and be led by a non-executive chair. The C&AG will be the NAO’s chief executive but will not be an NAO employee. Within the new governance framework, the C&AG continues to have complete discretion in the carrying out of the C&AG’s functions.
Part 8: Transparency of Government Financial Reporting to Parliament
17. Part 8 contains two clauses. Clause 51 amends the Government Resources and Accounts Act 2000 (the GRAA 2000) in order to allow the Treasury to issue directions about the way departments prepare Supply Estimates and to direct that such Estimates are to include information relating to “designated bodies”. It also includes provision preventing the designation of a body if it is funded solely from the Scottish Consolidated Fund, the Consolidated Fund of Northern Ireland or the Welsh Consolidated Fund and makes consequential amendments to the GRAA 2000. Clause 52 amends the Government of Wales Act 2006 to make corresponding provision in relation to Wales.
BACKGROUND
18. The provisions contained within the Constitutional Reform and Governance Bill stem from The Governance of Britain Green Paper (Cm 7170) published on 3 July 2007. This document can be found at:
19. This Green Paper set out the Government’s proposals for constitutional renewal. It stated that those goals are:
- To invigorate our democracy;
- To clarify the role of Government, both central and local;
- To rebalance power between Parliament and the Government, and give Parliament more ability to hold the Government to account; and
- To work with the British people to achieve a stronger sense of what it means to be British.
20. As part of this wider agenda of work, the Green Paper set out the Government’s intention to reform the complex and multifaceted role of the Attorney General, to alleviate conflicts or the appearance of them. The Government made a commitment to explore the future of its role in judicial appointments. The Government sought to improve the ways in which people can influence decisions and participate in the political process. One of the specific proposals here was to review restrictions on people’s rights to protest.
21. The Green Paper proposed that the power to make key decisions that affect the whole country, such as whether to ratify treaties, should not stem solely from the Royal Prerogative, but rest on a more formal footing, with Parliament key in determining the exercise of the power. Similarly, the Government proposed that the governance of the Civil Service, also based on the Royal Prerogative, and the fundamental values of the Civil Service - impartiality, integrity, honesty and objectivity - should be set out in statute.
22. Following the publication of the Green Paper, the Government published a number of consultation documents on particular policies. These are referred to where relevant in the background to each separate Part of the Bill.
23. In March 2008, the Government published a draft Constitutional Renewal Bill. This can be found at:
24. It contained draft provision in relation to:
- Demonstrations in the vicinity of Parliament;
- The Attorney General and prosecutions;
- Ratification of treaties; and
25. The draft Bill was subject to pre-legislative scrutiny by a Joint Committee of both Houses of Parliament. The Joint Committee reported in July 2008 and its report (HL Paper 166 and HC Paper 551) can be found at:
26. In addition, the Justice Committee of the House of Commons held an enquiry into the provisions relating to the Attorney General. Its report (Fourth Report of the 2007-8 Session, HC 698) can be found at:
27. The Public Administration Committee of the House of Commons also held an enquiry which largely focused on the Civil Service provisions of the draft Bill, although it did also consider the proposals on Treaties. Its report (Tenth Report of the 2007-8 Session, HC 499) can be found at:
28. Since the draft Bill was published, the Government has added provisions to the Bill on:
- Conduct and discipline in the House of Lords;
- Transparency of Government financial reporting to Parliament; and
- Time-limits for human rights cases brought against Ministers within the Devolved Administrations under the devolution Acts.
29. The following provides background on each Part of the Bill.
Part 1 Background - The Civil Service
30. The basis of the Civil Service as we know it today dates back to the Northcote-Trevelyan Report of 1854. The Report set out the enduring core values and key principles that underpin the role and governance of the Civil Service - integrity, honesty, impartiality and objectivity. The Report also recommended that these values and principles should be enshrined in legislation. However, no Government ever took forward this recommendation. Instead, over the last 150 years or so, Ministers have exercised powers in relation to the Civil Service under the Royal Prerogative.
31. In recent years, the merits of Civil Service legislation have been the subject of considerable debate, and there have been growing calls to implement the Northcote-Trevelyan recommendation and bring forward legislation for the Civil Service. In 2003, the House of Commons Public Administration Select Committee published a draft Civil Service Bill and, building on this, the Government launched a consultation A draft Civil Service Bill - A Consultation Document (Cm 6373, November 2004). This document can be found at
32. A detailed analysis of the consultation responses can be found in The Governance of Britain - Analysis of Consultations (Cm 7342-3).
33. These consultation processes and other public debates have revealed a considerable body of opinion in favour of Civil Service legislation. Therefore, the Government announced in July 2007, in its Green Paper, The Governance of Britain (Cm 7170), that it intended to bring forward legislation which would “include measures which will enshrine the core principles and values of the Civil Service in law”. The Joint Committee on the draft Constitutional Renewal Bill concluded that the Civil Service provisions received “overwhelming support”.
Part 2 Background - Ratification of Treaties
34. The current procedure for the Parliamentary scrutiny of treaties is known as the Ponsonby Rule. It provides that treaties which do not come into force on signature, but which instead come into force later when governments express their consent to be bound through a formal act such as ratification, must be laid before both Houses of Parliament as a Command Paper for a minimum period of 21 sitting days. In 2000, the Government undertook that it would normally provide the opportunity to debate any treaty involving major political, military or diplomatic issues, if the relevant select committee and the Liaison Committee so requested. Explanatory Memoranda are provided with each treaty laid before Parliament to keep it informed about the UK’s treaty intentions. Parliamentary debates on treaties are rare. At present there is no legal effect to objections raised by Parliament, in a resolution of either House or by a Select Committee, to the ratification of an agreement.
35. The Governance of Britain Green Paper (Cm 7170, July 2007) set out the Government’s belief that Parliament should have the right to scrutinise treaties prior to their ratification. In the Green Paper the Government went on to propose that the procedure for allowing Parliament to scrutinise treaties should be formalised and committed to consulting on an appropriate means for putting the Ponsonby Rule on a statutory footing.
36. A consultation document The Governance of Britain - War powers and treaties: Limiting Executive powers (Cm 7239) was published on 25 October 2007. The document can be found at:
37. The document invited comments on an appropriate means to put the Ponsonby Rule on a statutory footing. The consultation period ran until 17 January 2008. A detailed analysis of the consultation responses can be found in The Governance of Britain - Analysis of Consultations (Cm 7342-3). The draft Bill provided for treaties to be laid before Parliament for 21 sitting days prior to ratification with provision for flexibility and exceptions based on established practice and for the effect of a negative vote in either House of Parliament.
Part 3 Background - The House of Lords
38. Under the House of Lords Act 1999, membership of the House of Lords by virtue of a hereditary peerage was brought to an end. A transitional arrangement was made to except 92 hereditary peers from the effect of the Act. Two hereditary office holders, the Earl Marshal and the Lord Great Chamberlain, continued to be members of the House. In addition, 75 hereditary peers were elected by the hereditary peers in the groups of Conservative, Labour, Liberal Democrat and crossbench peers, in proportion to their membership of those groups. A further 15 hereditary peers were elected by the whole House to be available to serve as Deputy Speakers or Chairmen of Committees. When excepted peers died, they were to be replaced. Until the end of the first session of the Parliament following that in which the Act was passed (which turned out to be November 2002), the replacement was the peer who had been next on the list in the relevant election. Since then, replacement has been by means of by-elections held in accordance with the Standing Orders of the House.
39. The only restrictions which presently apply to membership of the House of Lords are on the grounds of nationality or age. Once someone is a member of the House, they cannot be removed from the House except by an Act of Parliament (whether generic, as in the House of Lords Act 1999, or personal, as in the Titles Deprivation Act 1917). Members may be temporarily disqualified for sitting or voting in the House if convicted of treason, on insolvency grounds and, once section 137 of the Constitutional Reform Act 2005 comes into force, while holding judicial office. Life peers are similarly disqualified while members of the European Parliament.
40. The nomination of life peers to the House of Lords is overseen by the non-statutory House of Lords Appointments Commission. That commission makes nominations to the Prime Minister for peerages for those not recommended by a political party. It also vets for propriety the nominations made by a political party. Life peerages are conferred by the Queen on the advice of the Prime Minister.
41. The White Paper An Elected Second Chamber: Further reform of the House of Lords (Cm 7438, July 2008) can be found at:
The paper proposed that there should be restrictions on the membership of the reformed second chamber on similar lines to those which applied to the House of Commons. That is, that members who had been convicted of an offence and sentenced to more than twelve months’ imprisonment, those who were subject to a bankruptcy restrictions order and those who had been detained under mental health legislation should lose their seats. That White Paper also proposed that members of the reformed second chamber should be able to resign their seats.
42. On 25 January 2009, the Sunday Times newspaper published allegations that four peers had broken the House of Lords Code of Conduct on paid advocacy. The Leader of the House announced the setting up of two House of Lords inquiries, one by the Lords Sub-Committee on Lords’ Interests and the other by the Committee for Privileges. The Lord Chancellor and Secretary of State for Justice also announced that he was working on a package of measures which would introduce legislation to remove from the House of Lords peers who were convicted of serious offences. He said he was also looking at whether provision should be made to permit the House of Lords to expel peers for grossly improper conduct that did not amount to a serious offence and at making provision for resignation.
43. On 14 May 2009, the House of Lords Committee for Privileges published its report into the allegations against the four peers. It also published a report into its investigation into the powers of the House. The report, The Powers of the House of Lords in respect of its Members (First Report 2009-10, HL 87) concluded that the House had the power to suspend a member for a defined period. This period however could not be longer than the remainder of the current Parliament because the House did not have the power to require that a writ of summons be withheld from a member otherwise entitled to receive it. The Report can be found at:
Part 4 Background - Public Order
44. The Governance of Britain Green Paper committed the Government to consult widely on the provisions covering demonstrations in the vicinity of Parliament, with a view to ensuring that people’s right to protest was not subject to unnecessary restrictions and with a presumption in favour of the freedom of expression.
45. The Government subsequently published the consultation paper The Governance of Britain - Managing Protest around Parliament (Cm 7235, 25 October 2007) which sought views on whether there remained a sufficiently strong case for a distinct legislative framework to apply to the policing of protests around Parliament. This document can be found at:
46. The majority of responses called for the repeal of the current provisions in sections 132 to 138 of the Serious Organised Crime and Police Act 2005. A detailed analysis of the consultation responses can be found in The Governance of Britain - Analysis of Consultations (Cm 7342-3). Following this consultation the Government decided to seek to repeal sections 132 to 138 of the Serious Organised Crime and Police Act 2005.
47. The Government also invited Parliament to clarify whether additional provision was needed to keep access leading to the Palace of Westminster free and open. During pre-legislative scrutiny, the Joint Committee on the draft Constitutional Renewal Bill examined these proposals and made a number of recommendations.
48. On the issue of maintaining access to Parliament, the Committee said “there should be unrestricted access to the Houses of Parliament for Members, staff and the public, but there must also be a willingness to accept some disruption during large scale protests. As a minimum there should be one point of entry at each end of the Houses of Parliament open to both pedestrians and vehicles, particularly to enable disabled users to gain access. Our provisional view is that Black Rod’s Garden entrance and the main entrance to Portcullis House are best suited to accommodate pedestrian access, while Carriage Gates and Peers Entrance are the most appropriate for vehicles. In light of the conflicting evidence we have received during our inquiry, we are concerned that the police may not have adequate powers upon the repeal of SOCPA to maintain the level of access that we call for above. We urge the Home Office to work with the police and other interested parties to resolve this issue.” [paragraph 36]
Part 5 Background - Time Limits for Human Rights Actions Against Devolved Administrations
49. Under the Scotland Act 1998, Northern Ireland Act 1998 and Government of Wales Act 2006 (“the Devolution Acts”), the devolved administrations, Parliament and Assemblies have no power to act in breach of the rights set out in the European Convention on Human Rights which are incorporated into UK law by the Human Rights Act 1998, that is those rights and freedoms drawn from the European Convention on Human Rights set out in Schedule 1 to the Act (“the Convention rights”). An act, including a failure to act, which is incompatible with Convention rights is therefore ultra vires. A person who alleges that they are a victim of an act which is a breach of convention rights can bring proceedings against the devolved body.
50. Under section 6(1) of the Human Rights Act 1998, it is also unlawful for a public authority to act in a way which is incompatible with a Convention right. If a person claims that a public authority has acted, or proposes to act, in a way which is made unlawful by section 6(1), they may bring proceedings against the public authority under the Human Rights Act in the appropriate court or tribunal. A person is permitted to do so only if they are, or would be, a victim of the unlawful act. A “public authority” includes the members of the Scottish Executive, Northern Ireland Executive and Welsh Assembly Government.
51. The Human Rights Act requires that proceedings must generally be brought within one year from the date of the alleged breach, unless a stricter time limit applies to the proceedings in question. A court or tribunal may permit proceedings beyond this time limit if it considers it equitable having regard to all the circumstances.
52. The Devolution Acts, however, make no such provision. As a result of the decision of the House of Lords in Somerville v Scottish Ministers [2007] UKHL 44, those bringing their claim under the Scotland Act are not subject to a specific time limit, notwithstanding that their claim may be identical in all other respects to proceedings under the Human Rights Act. Although the judgment did not deal with claims brought under the Northern Ireland Act 1998 and the Government of Wales Act 2006, those Acts are similarly silent as to the time in which proceedings may be brought.
53. These clauses therefore insert a one year time limit for bringing claims involving Convention rights against actions of Ministers in Wales and Departments or Ministers in Northern Ireland.
54. Similar amendments will, subject to Royal Assent, shortly be made to the Scotland Act by the Convention Rights Proceedings (Amendment)(Scotland) Bill, which has been passed by the Scottish Parliament. Once that Bill has received Royal Assent, the Government intends to re-enact these amendments to the Scotland Act.
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