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Clause 16: Annual reports about special advisers
112. Clause 16 makes provision for annual reports about special advisers, and the laying of such reports before Parliament, the Scottish Parliament and the National Assembly for Wales. Similar reports are already published by the Minister for the Civil Service and the First Minister in Scotland and can be viewed at:
Clause 17: Arrangements for Civil Service Commission to carry out additional functions
113. Clause 17 enables the Minister for the Civil Service and the Commission to agree that the Commission carries out additional functions in relation to the Civil Service. The Commission must carry out those functions. The additional functions may be directly or indirectly related to their existing functions.
CHAPTER 2
114. Clause 19 gives effect to Schedule 2.
CHAPTER 3
115. Clause 20 amends the Northern Ireland Act 1998 to list the appointment of the Civil Service Commissioners for Northern Ireland as a reserved matter under the Act.
SCHEDULE 1 - CIVIL SERVICE COMMISSION
CIVIL SERVICE COMMISSION
116. Schedule 1 makes provision for the Civil Service Commission. It contains provisions relating to: membership of the new Civil Service Commission; appointment of the First Civil Service Commissioner (who in practice will chair the Commission), and its other members the Commissioners, and their tenure of office; status and powers of the Commission; regulation of its proceedings; appointment of staff; arrangements for assistance, delegation and committees; financial provision and accounts; publication of its annual report; and transitional arrangements relating the old Civil Service Commission.
Part 1: The Commissioners
117. Paragraph 1 provides for a minimum of seven members of the Civil Service Commission, one as the First Civil Service Commissioner (“the First Commissioner”) and the others Civil Service Commissioners (“the Commissioners”).
118. Paragraphs 2 and 3 provide for the appointment of the First Commissioner and Commissioners, and the terms of appointment. Provision is also made for the appointment of ex-officio Commissioners. This might include for example, the appointment of the Public Appointments Commissioner as a Commissioner.
119. Paragraph 4 makes provision for the terms of appointment of a Commissioner to include provision for remuneration, allowances and pensions.
120. Paragraph 5 sets out the circumstances in which the First Commissioner or Commissioner may resign or be removed from office by Her Majesty on the recommendation of the Minister for the Civil Service.
121. Paragraph 6 makes provision for compensation for the loss of the office of First Commissioner or Commissioner.
Part 2: The Commission
122. Paragraph 7 establishes the status of the Civil Service Commission as a non Crown body. It provides that the Commission is not to be regarded as a servant or agent of the Crown and is not to enjoy any status, immunity or privilege of the Crown. It provides that any property held by the Commission is not held on behalf of the Crown.
123. Paragraph 8 sets out the powers of the Commission and enables it to take any action that facilitates or is incidental to its functions. Borrowing by the Commission is subject to the agreement of the Minister for the Civil Service.
124. Paragraph 9 makes provision for committees and sub-committees to assist the Commission in carrying out its functions, and paragraph 10 the procedure of the Commission and its committees and sub-committees.
125. Paragraph 11 enables the Civil Service Commission to employ staff.
126. Paragraph 12 enables pension provision to be made for the staff of the Commission and the First Commissioner. It provides for such persons to be eligible for membership of a pension scheme under section 1 of the Superannuation Act 1972. It places an obligation on the Civil Service Commission to cover the costs involved in membership of the pension scheme, and to pay the sums involved to the Minister for the Civil Service.
127. Paragraph 13 enables the Civil Service Commission to enter into arrangements with other parties for the provision of assistance to the Commission. In particular, it enables the Commission to make arrangements with the Minister for the Civil Service for serving civil servants to provide assistance to the Commission.
128. Paragraph 14 makes provision for the delegation of the Commission’s functions.
129. Paragraph 15 requires the Minister for the Civil Service to pay a grant or grant-in-aid to the Civil Service Commission to enable it to carry out its functions. Conditions may be attached to the payment of the grant or grant-in-aid. This is in line with the requirements and procedures set down in Managing Public Money. The Minister must consult with the Commission before setting the level of grant or grant-in-aid, or attaching any conditions to its payment.
130. Paragraph 16 makes provision for the accounts and records of the Civil Service Commission. The preparation and content of the annual statement of accounts must comply with HM Treasury requirements, and provide a fair and true view of the Commission’s income and expenditure and cash flows over the financial year and the state of its affairs at the end of the financial year. The Commission must send the annual statement of accounts to the Minister for the Civil Service by the date specified by the Minister. The Minister then sends the statement to the Comptroller and Auditor General who is required to examine, certify and report on it, and to lay copies of the statement and report before Parliament, unless the Minister for the Civil Service arranges to do so himself.
131. Paragraph 17 makes provision for the preparation and laying of the Commission’s annual report. The Report is laid before the Parliament by the Minister for the Civil Service (unless it has been arranged for the Comptroller and Auditor General to do so where the annual report has been combined with the annual statement of accounts in a joint document). Copies of the report are also laid before the Scottish Parliament and National Assembly for Wales by the First Minister for Scotland and Wales respectively.
132. Paragraph 18 provides a definition of the financial year for the purposes of paragraphs 16 and 17. The period begins when clause 2 comes into force (that is, when the Commission is established), and ends with the following 31 March. Thereafter it runs in successive 12 month periods.
133. Paragraph 19 makes provision for the authentication of the Commission’s seal and the execution of documents by the Commission.
SCHEDULE 2
Part 1: Consequential Amendments
134. Paragraphs 1 to 18 make amendments to various Acts to change references to the “Home Civil Service” and the “Civil Service Commissioners” to reflect the new terminology as set out in the Constitutional Reform and Governance Bill. The Bill preserves the Minister for the Civil Service’s overarching power to manage, and appoint to, the Civil Service. Paragraphs 9 and 15 make clear that Scottish and Welsh Ministers’ existing powers to manage and appoint to the Civil Service will be exercisable under the Bill but those management powers will continue to be delegable to Scottish and Welsh Ministers under the Civil Service (Management Functions) Act 1992.
Part 2: Consequential Amendments to other Legislation
135. Paragraphs 19 and 20 revoke the Civil Service Order in Council 1995, the Diplomatic Service Order in Council 1991 and all amending Orders in Council.
136. Paragraphs 21 to 24 amend subordinate legislation to change references to the “Home Civil Service” or the “Civil Service Commissioners” to changes in terminology.
Part 3: Transitional Provision Relating to the old Commission
137. Paragraphs 25 to 37 make transitional provision relating to the Civil Service Commissioners who operated under the prerogative (the “old Commission”).
138. Paragraph 26 provides for the First Civil Service Commissioner in the old Commission, to become the First Civil Service Commissioner in the Civil Service Commission when it becomes operational. The First Civil Service Commissioner who moves to the new Commission on this basis will be entitled to hold office for the remaining period of their original appointment. For example, where the serving First Civil Service Commissioner has been appointed for a five year term, and has served two years at the time the new Civil Service Commission becomes operational, he or she will be entitled to remain in office for a further three years, making a total period of appointment of five years. The other terms of the original appointment will continue to apply, unless the individual concerned agrees different terms.
139. Paragraph 27 makes provision to restrict the period of office of the First Commissioner where that person was previously head of the old Commission. The aggregate of time the individual concerned served as First Civil Service Commissioner in the old Commission, and as First Commissioner in the new Commission, must not exceed a total of five years.
140. Paragraph 28 provides for Commissioners who hold office in the old Commission immediately prior to the establishment of the Commission to become Commissioners in the new Commission when it becomes operational. A Civil Service Commissioner who moves to the new Commission on this basis will be entitled to hold office for the remaining period of their original appointment. For example, where the serving Civil Service Commissioner has been appointed for a three year term, and has served two years at the time the new Civil Service Commission becomes operational, he or she will be entitled to continue to serve as a Commissioner for a further year, making a total period of appointment of three years. Under these transitional arrangements, the other terms of the original appointment will continue to apply, unless the individual concerned agrees to different terms.
141. Paragraph 29 makes provision to restrict the period of office of a Commissioner where that person was previously a Commissioner in the old Commission. The aggregate of time the individual concerned served as a Civil Service Commissioner under the old arrangements, and as a Civil Service Commissioner in the new Commission, must not exceed a total of five years. Paragraph 29(4) contains an exception from that in respect of the Commissioner for Public Appointments who currently holds office as a Civil Service Commissioner on an ex officio basis.
142. Paragraphs 31 to 36 provide that certain functions that the old Commission are performing when the provisions are commenced can be continued by the Civil Service Commission and for property, rights and liabilities to transfer as appropriate to the new Commission.
143. Paragraph 37 establishes that in the period between the passing of the Act and the new Civil Service Commission becoming operational, the serving First Civil Service Commissioner and the other serving Civil Service Commissioners in the old Commission may undertake functions conferred on the new Civil Service Commission by the Act, on behalf of the new Commission.
Part 4: Transitional Provision Relating to the Management of the Civil Service
144. Paragraphs 38 and 39 preserve actions done under existing prerogative powers including decisions to appoint civil servants who, paragraph 39(4) makes clear, will continue to hold their positions under the new power contained in clause 17.
145. Paragraph 40 provides for the parts of the Civil Service of the State expressly excluded from the provisions in Part 1 to be managed under existing prerogative powers and preserves the position of civil servants who were managed under the revoked Orders in Council.
146. Paragraphs 41 and 42 specify that any appointments to the Civil Service made under an exception permitted by the old Commission cannot be considered to have entered the Civil Service on merit following fair and open competition unless the Commission has specified that is permissible in the Recruitment Principles.
147. Paragraph 43 provides for terms and conditions of special adviser appointments agreed before the enactment of the Constitutional Reform and Governance Act to continue as agreed between the passing of the Act and the commencement of the provisions.
PART 2: RATIFICATION OF TREATIES
Clause 21 - Treaties to be laid before Parliament before ratification
148. This clause sets out the main procedure to be adopted in relation to treaties before they are ratified on behalf of the United Kingdom. The procedure described is based upon the convention known as the Ponsonby Rule, which has been applied to the ratification of treaties since 1924 (see Erskine May, 23rd edition, page 264). Clause 21 provides that a treaty is to be laid before Parliament for a period of 21 sitting days, during which time both Houses have the opportunity to resolve that a treaty should not be ratified. If the 21 sitting days expire with no such resolution being passed by either House, the Government can proceed to ratify the treaty.
149. If the House of Commons resolves that a treaty should not be ratified, the Government cannot at that stage proceed to ratify the treaty. If it wishes to do so it must instead lay a statement explaining why it believes the treaty should be ratified, and then wait a further 21 sitting days, before it can again proceed to ratify the treaty. Should the House of Commons resolve against the ratification of the treaty during this second 21 sitting day period, the Government remains blocked from ratifying the treaty; if it still wishes to do so it must re-lay its statement and start the 21 sitting day period again.
150. If the House of Lords resolves that a treaty should not be ratified, the Government must then lay a statement explaining why it believes the treaty should be ratified. However, in this instance the Government does not need to provide the House of Lords with a further 21 sitting days to consider its statement and can proceed to ratify the treaty as soon as the statement has been laid.
151. Clause 21 stipulates that a treaty cannot be ratified by the Government unless Parliament has had the opportunity to review the treaty in question for a set time period. To facilitate the review of the treaty, it must be laid before Parliament and published in an appropriate manner.
152. Subsection (1) states that a treaty may not be ratified unless (a) a Minister of a Crown has in the first instance laid before Parliament a copy of the treaty, (b) the treaty has been published in a way that he or she thinks appropriate and (c) period A (as to which, see paragraph 157 below) has expired without either House having resolved that the treaty should not be ratified.
153. Subsection (2) explains the meaning of period A, which is referred to in subsection (1) (above). It is a defined as a period of 21 sitting days beginning with the first sitting day after the date on which the treaty has been laid.
154. Subsection (3) then explains that a further procedure, which is set out in subsections (4) to (6) (see below), will apply if the House of Commons resolves that the treaty should not be ratified (whether or not the House of Lords did so too).
155. Subsection (4) provides that a treaty may still be ratified if, after the House of Commons has resolved that a treaty should not be ratified during period A, (a) a Minister of the Crown has laid before Parliament a statement explaining why the treaty should nevertheless be ratified, and (b) period B (as to which, see below) has expired without the House of Commons having (again) resolved that the treaty should not be ratified.
156. Subsection (5) then explains that period B is a period of 21 sitting days beginning with the first sitting day after the date on which the Minister has laid the statement referred to in subsection (4)(a)(a statement as to why the treaty should nevertheless be ratified).
157. Subsection (6) states that such a statement as to why the treaty should be ratified may be laid more than once. This means that the process outlined in subsection (4) can start again, should the House of Commons resolve during the second 21 sitting day period that a treaty should not be ratified.
158. Subsections (7) and (8) then explain the condition that must be met in order for a treaty to be ratified if the House of Lords has resolved to the contrary (but the House of Commons did not do so). The condition is that a Minister of the Crown should lay before Parliament a statement explaining why the treaty should nevertheless be ratified.
159. Subsection (9) explains that a “sitting day”, as referred to in subsections (2) and (5), means a day on which both Houses of Parliament sit.
Clause 22: Extension of 21 sitting day period
160. This clause provides a mechanism for Parliament to request extensions to the 21 sitting day period. Extensions are to be granted in blocks of up to 21 sitting days and will be at the discretion of the relevant Minister of the Crown. By subsection (1) the Minister may extend the period by 21 days or less. Subsections (2) and (3) provide that this can be done by laying a statement before Parliament before the expiry of the relevant period that indicates the period to be extended and the length of that extension. Subsection (4) requires the Minister to publish the statement in a way that the Minister thinks appropriate. Subsection (5) provides that the period can be extended more than once.
Clause 23: Section 21 not to apply in exceptional cases
161. This clause makes provision for exceptional cases. This clause provides an alternative procedure for treaties to be scrutinised by Parliament in exceptional cases where it is not possible for a treaty to be laid for the full 21 sitting day period before it is ratified.
162. Subsection (1) provides that the procedure does not apply if a Minister of the Crown is of the view that, for exceptional reasons, a treaty should be ratified without having to meet the conditions for which that clause provides.
163. Subsection (2) provides that subsection (1) may not be invoked where either House has resolved against ratification in accordance with clause 21(1)(c).
164. Subsection (3) provides that if, exceptionally, the treaty is to be, or has been, ratified without fulfilling the conditions in clause 21, the Minister of the Crown must either before, or as soon as practicable after, the treaty is ratified, lay before Parliament a copy of the treaty and a statement indicating why the conditions in clause 21 are not met. The Minister of the Crown must also arrange for the treaty to be published in a way that he or she thinks appropriate.
Clause 24: Section 21 not to apply to certain descriptions of treaties
165. This clause makes provision in respect of those classes of treaties that have traditionally been dealt with outside the Ponsonby Rule, because they are scrutinised by other means. These are (i) treaties covered by the European Parliamentary Elections Act 2002 and European Union (Amendment) Act 2008, (ii) double taxation conventions and arrangements, and international tax enforcement arrangements and (iii) treaties concluded under an authority given by the UK Government by any of the Channel Islands or of the Isle of Man or any of the Overseas Territories.
166. Subsection (1) states that the procedure does not apply to a treaty covered by section 12 of the European Parliamentary Elections Act 2002 (which provides for treaties resulting in an increase in the European Parliament’s powers not to be ratified unless approved by Act of Parliament) or by section 5 of the European Union (Amendment) Act 2008 (which provides for amendments to the founding treaties not to be ratified unless approved by Act of Parliament).
167. Subsection (2) exempts treaties in relation to which an Order in Council may be made under section 158 of the Inheritance Tax Act 1984 (double taxation conventions), section 788 of the Income and Corporation Taxes Act 1988 (double taxation arrangements) or section 173 of the Finance Act 2006 (international tax enforcement arrangements).
168. Subsection (3) states that the procedure does not apply to treaties concluded by the government of a British Overseas Territory, the Channel Islands or the Isle of Man where that treaty is concluded under the authority given by the United Kingdom Government.
169. Subsection (4) provides for treaties that have already been laid before Parliament for 21 sitting days before the legislation comes into force. It states that these treaties will not be covered by section 21. This means that the legislation does not cover treaties that have already been laid under the Ponsonby Rule.
Clause 24: Meaning of “treaty” and “ratification”
170. This clause defines “ratification” and “treaties”. “Treaty” is defined as being an agreement between states (or between states and international organisations) which is binding under international law. Subsection (2) clarifies that certain instruments made under a treaty are not within the definition given in subsection (1). But amendments to a treaty are within the definition of “treaty”.
171. Subsection (3) provides a definition for “ratification” to include those acts that are considered equivalent to ratification (accession, approval or acceptance, or deposit of a notification that domestic procedures have been completed) and which establish as a matter of international law the consent of the United Kingdom to be bound by the treaty.
PART 3: THE HOUSE OF LORDS
Clause 26: Ending of by-elections for hereditary peers
172. Clause 26 removes the provision for by-elections to elect hereditary peers to make up the number of 90 excepted hereditary peers when one of their number dies. Section 2(2) of the House of Lords Act 1999 provides that 90 hereditary peers shall be excepted from the effect of section 1 of that Act, which ended membership of the House by virtue of a hereditary peerage. Section 2(4) provides the mechanism for replacing excepted hereditary peers when they die, so that the number is maintained. Clause 26 replaces section 2(4) so that instead of the number of 90 being fixed, it is reduced by one every time an excepted hereditary peer dies. It also replaces section 2(4) so that there is no longer a mechanism for selecting new hereditary peers for membership of the House. Subsection (2) makes it clear that if a death occurs before the section comes into force, but the necessary by-election has not yet been held, then the by-election will proceed.
Clause 27: Removal of members of the House of Lords etc
173. Subsection (1) identifies the persons to whom the clause applies. It provides that the clause applies to anyone who is an excepted hereditary or a life peer and who either:
(a) meets a condition set out in Part 1 of Schedule 1 (that is, is convicted of a serious criminal offence, is subject to a bankruptcy restrictions order or undertaking or debt relief restrictions order or undertaking in England and Wales or the corresponding provisions in Scotland or Northern Ireland); or
(b) is the subject of an expulsion resolution of the House; or
(c) has resigned from the House.
174. Subsection (2) provides that a person to whom the clause applies shall cease to be a member of the House of Lords. Any writ of summons issued to that person shall cease to have effect and no further writs shall be issued to that person. A writ of summons is the mechanism by which an eligible peer takes up his or her seat in the House of Lords. It requires the peer to attend the sitting of the Parliament for which it is issued. It cannot be issued to anyone who is not a peer, but may not be withheld from any peer who is eligible to receive one.
175. Subsection (5) provides definitions of the terms used in the clause. In relation to hereditary peers, it defines those to whom the clause applies as those excepted from the effect of the House of Lords Act 1999. Under that Act, the majority of hereditary peers ceased to be members of the House. However, 90 hereditary peers, to be chosen by ballot, together with the Earl Marshal and the person holding the office of Lord Great Chamberlain, were excepted from the effect of the Act and remained members of the House. Subsection (5) therefore provides that for the purposes of this Bill, the term “hereditary peer” applies only to those 92 peers. It defines life peers as both those appointed to the House under the Life Peerages Act 1958 and those appointed under the Appellate Jurisdiction Act 1876 (“the 1876 Act”). The latter, commonly known as the Law Lords, are appointed specifically to carry out the judicial business of the House. They are full members of the House even after they retire from judicial business under the statutory retirement provisions for members of the judiciary. The clause confirms that their appointment to the House counts as a peerage for the purposes of the Bill. Under the Constitutional Reform Act 2005, the active judicial members will transfer to the new UK Supreme Court and will be disqualified for sitting and voting in the House while they are members of that Court. However, retired judicial members who were appointed under the 1876 Act will continue to sit as members of the House.
176. Subsection (6) provides that peers in certain categories who are temporarily barred from receiving a writ of summons are not, by virtue of that bar, taken outside the provisions of the Bill. Under the Forfeiture Act 1870, anyone convicted of treason is ineligible to receive a writ of summons until he has served his sentence or received a pardon. Under the Insolvency Act 1986, peers who are subject to a bankruptcy restrictions order or a debt relief restrictions order, or corresponding provision in Scotland and Northern Ireland, are disqualified for sitting and voting in the House and from receiving a writ of summons while so disqualified. Under the European Parliament (House of Lords Disqualification) Regulations 2008, a life peer who is elected as a member of the European Parliament is disqualified for sitting and voting in the House and no writ of summons is to be issued to them while so disqualified. A peer who has not received a writ of summons because he is suspended from the House is also not, by virtue of that, taken outside the provisions of the Bill.
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