Constitutional Reform and Renewal - Justice Committee Contents


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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Prepared 29 July 2009