1 Background and introduction
1. We welcome the current interest in constitutional
reform shown by all the parties. Over the past ten years the Government
has introduced a range of constitutional reforms, some of them,
such as devolution, radically changing the way in which the United
Kingdom is governed. Despite carrying through such major reforms
and now generally accepted changes, the Government has not developed
any consistent process for constitutional reform. Whether this
is a reflection of the United Kingdom's famously unwritten constitution,
or the lack of a settled endgame, is open to argument. However,
it is clear that 'unfinished business' has been the enduring motif
of many of the strands of constitutional renewal. The expulsion
of most hereditary peers without further reform of the House of
Lords, devolution to Scotland, Wales and Northern Ireland without
further reform in England, the shifting policies in relation to
regional governance and the Lord Chancellorship, the moribund
Constitutional Renewal Bill, and, most recently, the rush to bring
in legislation on parliamentary standards and the rash of other
ideas for change, suggest short term expediency rather than strategic
vision.
2. These policy areas are so fundamental that
we have sought to highlight some of the problems, pitfalls and
dangers of unintended consequences arising from understandable
but hasty action in reaction to public anger over recent events.
However welcome the Government's responsiveness to the public
mood, appropriate mechanisms should be established for constitutional
reform in the United Kingdom as there is a real danger of embracing
solutions that bring further problems. We have reported on the
Parliamentary Standards Bill already in this light and we will
return to the detail of the latest proposals as and when they
fully emerge.[1]
Constitutional reform and renewal
3. Speaking in the House of Commons on 10 June
2009, the Prime Minister made a statement in relation to parliamentary
and constitutional reform.[2]
There is no doubt that this announcement was, in part at least,
a response to public debate occasioned by recent publicity about
Members' allowances and expenses. The Prime Minister asserted
that: "all of us have the humility to accept that public
confidence and the battered reputation of this institution cannot
be repaired without fundamental change".[3]
4. The statement included a reference to a range
of proposals and potential areas for parliamentary and constitutional
reform which can be broadly divided into three categories. Firstly,
the creation of an Independent Parliamentary Standards Authority
to reform the way Members' resources are dealt with; secondly,
the creation of a Parliamentary Commission (now Select Committee)
to review the balance of power between the executive and Parliament
in terms of initiating parliamentary proceedings and managing
parliamentary business; and thirdly, a wide range of proposals
for constitutional reform, including new ways for the public to
participate in parliamentary activity.
5. In responding to the Prime Minister's statement
on 10 June 2009, Rt Hon David Cameron MP, Leader of the Opposition,
argued that the proposals failed to address "the central
question that we believe should lie behind any programme for constitutional
reform: how do we take power away from the political elite, and
give it to the man and woman in the street?" He suggested
other proposals, including local referendums and citizens' initiatives.[4]
While welcoming the Prime Minister's proposals for the creation
of a Parliamentary Standards Authority, Rt Hon Nick Clegg MP,
Leader of the Liberal Democrats, was "dismayed that the Prime
Minister is completely silent on the issue of party funding".[5]
6. The Prime Minister's statement and the responses
to it represent the tip of an iceberg in terms of the on-going
work, discussion and debate on constitutional reform which has
taken place within the three main parties over recent years. In
2006, the Conservative party set up the Democracy Taskforce which
has since made recommendations in response to the West Lothian
Question, on the reform of Parliament (including a reduction in
the number of Members of Parliament), and on the role of the executive.[6]
The Liberal Democrats have suggested potential reforms including:
the decentralization of the government of England, fixed term
Parliaments, a citizen's assembly on electoral reform, a reduction
in the number of MPs by 150 and Peers by 300 and a procedure to
enable voters to bring about a by-election where a member has
been proved, after due process, to have committed a serious breach
of the House rules.[7]
7. Writing in The Guardian on Wednesday
17 June, Rt Hon Michael Wills MP, Minister of State, Ministry
of Justice, identified that much of the immediate response to
the Prime Minister's statement had focused on the proposals for
parliamentary reform and the creation of the Parliamentary Standards
Authority. However, he emphasized that effort and resources were
required to deliver the other reforms in order to "produce
the radical constitutional reform our democracy now so desperately
needs".[8]
8. Following the Prime Minister's statement,
the Ministry of Justice published a press notice which gave a
further indication of how some of these proposals would be developed.
Rt Hon Jack Straw MP, Secretary of State for Justice and Lord
Chancellor, said:
"The creation of a Parliamentary Standards Authority
and an MPs' code of conduct will continue the fundamental reforms
we have already delivered to increase the accountability and transparency
of Parliament.
"We are holding cross party talks on this matter,
the first of which will take place today, and we will proceed
urgently with legislation to restore the public's trust in MPs,
politics and Parliament.
"The government published a draft Constitutional
Renewal Bill last year which includes measures aimed at surrendering
prerogative powers to Parliament. This has been subject to wide
consultation. We intend to introduce a final Bill to the House
before the summer recess".[9]
Building Britain's Future
9. Further to the Prime Minister's statement
of 10 June, a White Paper, Building Britain's Future, was
published on 29 June 2009. The Government identified a "crisis
of trust in British politics"[10]
and gave an indication of its intended process for pursuing constitutional
reform, setting out a "plan to build
strong democratic
foundations
based on the principles of far greater transparency
and openness, accountability and the further redistribution of
power from the hands of the few, to those of the many
This
new settlement cannot be determined by politicians alone; it must
be developed in dialogue with the British people".[11]
10. In order to achieve this new settlement,
the Prime Minister has established and chairs the "Democratic
Renewal Council".[12]
The Government said that the Council will "ensure a sustained
focus at a senior ministerial level on the task of democratic
and constitutional renewal
at the heart of this will be
greater openness and transparency in the workings of Government
and Parliament".[13]
The Council was further described as the mechanism by which the
Government would formulate its position and drive forward its
agenda. It was "by no means exclusive and
was [not]
the single source of wisdom on this subject". However, it
remains unclear how this body, entirely made up of Ministers,
is any different from previous incarnations of Cabinet sub-committees
on the constitution and whether the usual practice of strict confidentiality
in relation to Cabinet sub-committees would apply. The proposals
approved by the Democratic Renewal Council are outlined in chapter
four of this report.
The Draft Constitutional Renewal
Bill
11. The proposals outlined in the Prime Minister's
June statement and expanded upon in Building Britain's Future,
are in addition to the provisions of the Draft Constitutional
Renewal Bill. Following the Governance of Britain Green
Paper, the Draft Constitutional Renewal Bill was published
on 25 March 2008. It was considered by a Joint Committee which
reported on 31 July 2008.[14]
The draft Bill included a wide range of provisions, of varying
constitutional significance, including the reform of prerogative
powers, the civil service and the role of the Attorney General,
and also included measures for the scope of protests in Parliament
Square. The Joint Committee concluded:
"We recognise that the Draft Bill is a first
step in a wider programme of reforms to the constitution planned
in the Green Paper. There are many significant reforms outside
the scope of this Draft Bill. It would be regrettable if the passing
of this Bill prevented further progress in other fundamental areas
of reform
"[15]
12. The Constitutional Reform and Governance
Bill was published on Monday 20 July 2009[16].
The Bill makes provision for ending the hereditary principle in
the House of Lords, reform of the civil service and in relation
to demonstrations around Parliament Square. Since the publication
and consideration of the draft Bill, the debate and agenda for
constitutional reform has moved on significantly. In this context,
the Bill appears limited.
13. Furthermore, some crucial provisions which
were included in the draft Bill have not been included in the
Bill, for example, the provisions relating to the role of the
Attorney General. We published a report, Draft Constitutional
Renewal Bill (provisions relating to the Attorney General)
in June 2008. The Government published its response to our report
on the on 20 July 2009.[17]
It said that "significant, necessary reforms to the
role of Attorney General can be achieved without the need for
legislation".[18]
It also pointed to a new protocol to be agreed between the Attorney
General and the Directors of Public Prosecutions, the Serious
Fraud Office and Revenue and Customs Prosecutions on their respective
responsibilities which is intended to "improve relationships,
guarantee prosecutorial independence while ensuring an appropriate
degree of accountability and to improve transparency about the
relationship".[19]
14. In our report, we expressed concern that
"the draft Bill does not provide for a clear split in the
[Attorney's] role to create a non-political legal adviser and
refer the political duties to a minister in the Ministry of Justice".[20]
In its response the Government stated:
"The Government's settled view is that the Attorney
General should remain the Government's chief legal adviser, a
Minister and member of one of the Houses of Parliament, and that
the Attorney General should continue as the Minister responsible
for superintending the prosecuting authorities".[21]
15. We welcome the fact that the Attorney General
now only attends Cabinet when matters affecting her responsibilities
are on the agenda. Nevertheless, we are disappointed that the
Government has rejected our concerns over the difficulty of combining
the political and legal roles of the Attorney General. We welcome
the fact that there has been a degree of open public debate between
Ministers on this issue,[22]
and it should remain an issue for further public debate and consideration.
To assist that process we believe that the Government should make
a fuller and clearer statement explaining the view it has taken
on the role of the Attorney General.
Conclusion
16. We recognise the appetite
in many quarters for fundamental constitutional change and welcome
the Government's renewed focus on constitutional reform and renewal
in response to this. We are surprised by the limited provisions
in the Constitutional Reform and Governance Bill, and fear that
this may be a missed opportunity to make progress in some areas
of reform. Any programme introducing fundamental change should
be carefully constructed and aimed at a coherent outcome taking
into account the widest possible range of views.
1 Justice Committee, Seventh Report of Session 2008-09,
Constitutional Reform and Renewal: Parliamentary Standards
Billl, HC 791 Back
2
HC Deb, 10 June 2009, cols 795-799 Back
3
HC Deb, 10 June 2009, col 795 Back
4
HC Deb, 10 June 2009, col 800 Back
5
HC Deb, 10 June 2009, col 803 Back
6
For example see: http://hcl1.hclibrary.parliament.uk/Other_orgs/Conservative_Party/West_Lothian_Amended_2008.pdf;
http://www.conservatives.com/pdf/dtfpaper.pdf; http://www.conservatives.com/pdf/DTF_Sofa_Government.pdf
Back
7
HC Deb, 10 June, col 803. See: www.epolitix.com/latestnews/article-detail/newsarticle/lord-tyler-creating-a-legacy-for-constitutional-reform/
and www.libdems.org.uk/www.libdems.org.uk/media_centre/100-day-plan-enabling-legislation-for-a-referendum-on-av--273538224;show.html
. See also policy paper 83, For the People, by the People,
September 2007. Other ideas for parliamentary reform are outlined
in the House of Commons Library Standard note, PC05110 Suggestions
for possible changes to the procedure and business of the House-
a note by the Clerks, 18 June 2009. Back
8
"Michael Wills urges Cabinet not to backtrack on Attorney
General", The Guardian, 17 June 2009 Back
9
www.justice.gov.uk/news/newsrelease100609a.htm Back
10
Prime Minister, Building Britain's Future, Cm 7654, June
2009, para 1, p. 27 Back
11
Ibid, paras 5-7, p.27 Back
12
In a No. 10 press briefing on 9 June 2009, the Prime Minister's
spokesman said that the Prime Minister would chair the meetings
of the Democratic Renewal Council (which would meet regularly)
and that the following people would attend; Jack Straw, Harriet
Harman, Lord Mandelson, Alistair Darling, David Miliband, Alan
Johnson, Hilary Benn, Douglas Alexander, John Denham, Shaun Woodward,
Baroness Royall, Jim Murphy, Peter Hain, Michael Wills, Nick Brown
and Steve Bassam (the Lords Chief Whip - to attend when Lords
issues were discussed). Back
13
Prime Minister, Building Britain's Future, Cm 7654,
June 2009, para 18, p. 29 Back
14
Joint Committee on the Draft Constitutional Renewal Bill, Draft
Constitutional Renewal Bill, HL 166-I and HC 551-I, Session
2007-08, 31 July 2008 Back
15
Ibid, para 381 Back
16
Previously the Draft Constitutional Renewal Bill Back
17
Attorney General, The Government's Response to the Justice
Committee's Report on the Draft Constitutional Renewal Bill (provisions
relating to the Attorney General), Cm 7689, July 2009 Back
18
HC Deb 20 July 2009, col 106WS Back
19
We note publication of the 'Protocol between the Attorney General
and the Prosecuting Departments' on 21 July 2009 which sets out
"how the relationship is to work in practice, to safeguard
the independence of the prosecutors while enabling the Attorney
to be properly accountable to Parliament and the public."
The new protocol makes it clear that the Attorney General will
not be consulted in any case which concerns an MP or peer or where
there is a personal or professional conflict of interest, other
than when her decision is required by law. Back
20
Justice Committee, Fourth Report of Session 2007-08, Draft
Constitutional Renewal Bill (provisions relating to the Attorney
General), HC 698, para 40 Back
21
Attorney General, The Government's Response to the Justice
Committee's Report on the Draft Constitutional Renewal Bill (provisions
relating to the Attorney General), Cm 7689, July 2009, p.
2. See also Patrick Wintour, The Guardian, 17 June 2009 Back
22
See "Michael Wills urges Cabinet not to backtrack on Attorney
General", The Guardian, 17 June 2009 Back
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