Constitutional Reform and Renewal - Justice Committee Contents


4  Constitutional Reform

Building Britain's Future

50.  Both in his statement of 10 June, and in Building Britain's Future, the Prime Minister set out those areas within which it is intended that the Government bring forward proposals for consideration and debate. The document outlines and describes a "radical programme of democratic and constitutional reform" including:

  • further reform of the House of Lords;
  • the possibility of a written constitution;
  • offering stronger powers to local and city-regional government;
  • possible options for electoral reform; and
  • how to improve engagement, particularly of young people. [57]

HOUSE OF LORDS REFORM

51.  On 6 and 7 March 2007, the House of Commons debated motions on the composition of the second chamber and voted in favour of both an all elected House and a House comprising 80% elected and 20% appointed peers, with a significantly greater majority in favour of an all elected House. There was wide support across the main political parties for this option. On 13 March 2007, however, the House of Lords voted in favour of an all appointed House to the exclusion of all other options.

52.  On 14 July 2008, the Government published a White Paper, An Elected Second Chamber: Further Reform of the House of Lords,[58] which considered proposals for either an 80% or 100% elected second chamber, with non-renewable terms of 12 to 15 years.[59] In Building Britain's Future the Government voiced its intention to legislate in the 2009-10 session for the next steps on House of Lords reform by completing the process of removing the hereditary element from the second chamber, and to bring forward a draft Bill for a smaller and democratically constituted second chamber.[60]

53.  There are a number of constitutional issues and principles still to be addressed:

  • the primacy of the Commons, and the potential change in the expected powers of the second house (formal or otherwise) if it has an electoral mandate;
  • whether it would be constitutionally and politically appropriate to use the Parliament Acts 1911 and 1949 to force through the second stage of Lords reform.

54.  Further thought is also required in order to address how reform of the House of Lords is linked to existing constitutional arrangements and proposed constitutional reforms:

  • the creation of a predominantly elected second chamber, to which all three main parties are committed, would involved deciding on an electoral system which may have implications for any change in the electoral system for the House of Commons;
  • devolution has raised new issues for the role of the second chamber and will continue to do so;
  • the creation of the Supreme Court has already changed the future composition of the House of Lords by ending the appointment of law lords;
  • there is a possible inter-relationship between the future of bishops in the second chamber and the establishment of the Church of England; and
  • potential reforms of the Commons leading to more detailed scrutiny of legislation and a strengthening of the Commons in relation to the executive could change the balance in the respective role of the two Houses.

55.  On 14 July, Rt Hon Jack Straw MP indicated that proposals would be published before the summer recess including those relating "to hereditaries and disqualification, resignation and suspension of members and then there are the longer term ones",[61] which "with a bit of luck can be the subject of legislation which goes through all its stages before the end of this Parliament".[62]

56.  In a Written Ministerial Statement on the Constitutional Reform and Governance Bill, published on 20 July, the Ministry of Justice indicated that the Bill included provisions which would:

  • end the hereditary peers by-elections, thus phasing out the hereditary principle; and
  • provide for the resignation of peers and powers for their expulsion, suspension and disqualification in certain circumstances.

In the same statement, the Government indicated that it was fully committed to comprehensive reform of the Lords, based on four principles, all of which were endorsed by the cross-party group namely:[63]

  • the primacy of the House of Commons, enshrined in the Parliament Acts, and in rules and convention;
  • independence of members, supported by their serving a single, non-renewable term of three normal-length Parliaments, and, as set out originally in the 2007 White Paper (The House of Lords: Reform, Cm 7027), by a system of election which prevents a single party gaining an overall majority;
  • direct election, such that the second chamber has a democratic mandate underpinning its revising role, but one that is never as a whole more up to date than that of the Commons; and
  • sensible transitional arrangements in respect of existing peers.

57.  The Government said that it would seek to address "outstanding questions … in final proposals [to be published] after the summer, with draft legislation for pre-legislative scrutiny as soon as possible". It identified those outstanding questions as the electoral system and the size of the elected element (80% or 100%).

58.  The present Prime Minister has appointed 11 people to be life peers so that they could serve as ministers or as an adviser to the Government, some of whom have already given up ministerial office but remain members of the House of Lords. These measures accentuate a trend towards an appointed second chamber, contrary to the view expressed by the three main parties and by the House of Commons. Moreover, it is likely to lead to a continuous trend in future governments appointing peers in order to rebalance the numbers and this is unsustainable.

A WRITTEN CONSTITUTION

59.  The Governance of Britain Green Paper 2007 noted the possibility of a British Bill of Rights and Duties. In March 2009, the Government's Green Paper, Rights and Responsibilities: developing our constitutional framework was published. A Bill of Rights and Responsibilities would impact on the debate around the constitution, as it would take the UK a step closer to a written constitution. No legislation is expected on a Bill of Rights before the next general election; but the Government has announced a public debate on a written constitution, building on the dialogue begun in Rights and Responsibilities: developing our constitutional framework.[64]

60.  The Prime Minister has indicated that he is in favour of a written constitution.[65] It is worthy of note that significant parts of the UK's constitution are written down, for example, the Scotland Act 1998, the Wales Act 1998, the Government of Wales Act 2006, the Northern Ireland Act 2009 and the Human Rights Act 1998, the European Communities Act 1972, the Maastricht Treaty, the Magna Carta and the Bill of Rights. Nevertheless, as the Government has identified, "a move to a written constitution would represent a fundamental and historic shift in our constitutional arrangements".[66] We agree. There are many constitutional issues and questions relating both to the principles upon which a written constitution would be based and the process by which it could be determined and, if necessary, subsequently amended:

  • the process and timetable for debate on a written constitution, and public engagement in the process;
  • the different forms a written constitution for the UK could take;
  • the question of how comprehensive the text of a written constitution should be:
    • should it include most constitutional conventions?
    • should the text be a detailed rule book or a relatively brief statement of the principal arrangements?
  • the extent to which a written constitution could or should be protected from amendment by the ordinary Parliamentary process for changing legislation ('entrenched'), given the doctrine of parliamentary sovereignty;
  • the extent to which a written constitution should be enforceable by the courts and the role of the Supreme Court and relationship with Parliament in this area;
  • the relationship between, or hierarchy of the constitution, statute and common law; and
  • the mechanism for agreement to such a fundamental change, which would presumably involve a referendum.

61.  Rt Hon Jack Straw MP said that:

"There are two models of a written Constitution. One is a text which seeks to bring together the fundamental principles, sometimes called conventions, of our constitutional arrangements, the most important of which is that Parliament is sovereign, but also to bring in other texts as well, which include things like the Parliament Acts, a Bill of Rights and Responsibilities and so on, basic texts which add up to the arrangements which we have today … The second model is an entrenched and overarching Constitution which is more powerful than Parliament … If you go down that route you would have to have some special means of endorsing that text, and probably generating it as well through some kind of constitutional convention. It would have to be endorsed by Parliament and then by a referendum and you would also have to have a special process for amending it as well. Typically in other countries that is a combination of either special majorities in the Parliament, two-thirds and so on, and/or a referendum".[67]

He noted that he preferred the first model and further clarified that he was in favour of a "single text which better describes our arrangements".[68]

62.  When asked in Liaison Committee on 16 July, whether a written constitution should be entrenched, the Prime Minister responded:

"I think that would have to be your understanding and, therefore, you would have to agree a mechanism by which it could be changed in the future, but I accept that that raises the question of whether one Parliament can bind another Parliament, and I accept also that there are very difficult questions already raised by the existence of a supreme court and the role of the judges in the coming in of a supreme court that have got to be dealt with as well because I do not think that the intention of a written constitution, in Britain at least, would be to give judges greater power over our democratic affairs".[69]

63.  The Prime Minister has raised the issue of a written constitution. This involves fundamental issues about the sovereignty of Parliament, the nature of the monarchy, the role of the judiciary and the rights of the citizen, which merit careful and close examination. We would welcome a thorough debate.

STRONGER POWERS TO LOCAL GOVERNMENT

64.  In May 2009 we published a major report, Devolution: a decade on, looking at the impact of devolution in the UK.[70] This included an examination of the 'English Question' and the devolution of power in England. We described the governance of England as the "unfinished business" of devolution.[71] Many different solutions have been suggested to the many different questions which fall under the broad heading of the English question. First, there are proposals which seek to address the constitutional imbalance seemingly brought about by devolution, for example, through the creation of an English Parliament. Second, there are potential solutions which seek to amend the role, practice and status of the Westminster Parliament as a means of addressing the West Lothian Question, for example, schemes of English votes for English laws. The final category of solutions covers those which attempt to tackle the centralized nature and relative size of England through decentralization or devolution within England.

65.  Any move towards an all-England solution, or the creation of an all England government and assembly, raise questions of the asymmetrical size and population of England within the United Kingdom. These issues also have particular implications for the executive role and for the whole political process. A potential First Minister of England and English Government would command resources, political attention and media coverage on such a scale that he or she could rival the UK Prime Minister and Government for perceived significance in the mind of voters.

66.  Following defeat in the 2004 referendum on establishing a regional assembly in the North East, the Government has sought to address issues around the governance of England through the strengthening the development of regional bodies, including regional development agencies, regional assemblies and regional government offices in the region.[72] Proposals for the creation of nine regional select committees were set out in The Governance of Britain. It was suggested that these select committees would examine the work and activities of regional bodies, in particular the regional development agencies, and call Ministers, particularly the relevant regional Minister, to account.[73]

67.  On 12 November 2008 the House of Commons agreed to establish eight regional select committees. The Standing Order stated that the regional select committees shall be appointed to "examine regional strategies and the work of regional bodies" for the eight English regions, excluding London. A further Standing Order set up regional grand committees, to which all regional members were appointed.[74] A Regional Select Committee for London was later set up on 25 June 2009. The Government's intention was that the committees would look at the "development or implementation of policies where there is a regional aspect to decision-taking and delivery, and would not be focused on the purely local impact of nationally set policies".[75] The Standing Order establishing these Committees took effect from 1 January 2009, and the Committees met for the first time during March 2009. However, only Labour members have been appointed to the Committees because the Conservative party was opposed in principle to the system and the Liberal Democrats objected to the fact that the committees' composition would not reflect the balance of Members of Parliament in the region, but rather were in accordance with the distribution of seats in the House of Commons. As a result, neither opposition party chose to put forward nominations.

68.  Ministers posts for each region have been created. The Governance of Britain defines the role of Regional Ministers as to:

  • "advise the Secretary of State for Business, Enterprise and Regulatory Reform on the approval of regional strategies and appointment of RDA Chairs and Boards;
  • represent regional interests in the formulation of central government policy relevant to economic growth and sustainable development in areas that have not been devolved to the RDAs;
  • facilitate a joined up approach across government departments and agencies to enable the effective delivery of the single regional strategy;
  • champion the region at high level events and with regard to high profile projects (including through a programme of regional visits); and
  • represent the Government with regard to central government policy at regional select committee hearings and at parliamentary debates focused specifically on the region". [76]

69.  Ministers designated as regional ministers do this work in addition to their other ministerial responsibilities in a variety of departments. The Government has also introduced regional boards for local authority leaders in order to address issues of regional accountability.

70.  However, more recently, the Government has focused its attention on the strengthening of local government as a way of addressing the governance of England. Rt Hon Jack Straw MP said, in evidence to our inquiry into devolution: "people … are more interested in ideas of strengthening the existing local government units and the development of … city regions".[77]

71.  Whether or not there are future moves towards devolving power to an all England national body, or to regional authorities in England, there remain key questions about the balance between central and local government in England. We note that the Communities and Local Government Committee has recently published a report entitled The balance of power: central and local government[78] which examines how local government in England could be more proactive in making best use of existing structures and where change is required to increase the scope for autonomous local government activity. The Committee's report also examines the role of central government in relation to local government and advocates further cultural change to facilitate a lasting move towards a "minimalist" approach to the centre's involvement in local government.

72.  We also note the progress of the Local Democracy, Economic Development and Construction Bill which includes provisions on increasing opportunities for public involvement in local decision-making and scrutiny; new forms of joint working between local authorities; and on the establishment of single regional development strategies produced jointly between regional development agencies and local authorities.

73.  In comparison with many other democracies, local government in England remains relatively weak in relation to central government both in its ability to exercise authority and in its funding systems, and central government is free to make major changes to the pattern and structure of local authorities without constitutional restraint. This has been illustrated by the abolition of the Greater London Council and metropolitan counties under a previous government and the imposition of unitary authorities by the present government. This raises the question of whether the powers and structures of local government would or should be recognised in a written constitution, with a specified process for any changes to be made in them.

ELECTORAL REFORM

74.  Since 1997, the issue of reform of the voting system for Westminster elections has been sporadically under consideration by the Government. An Independent Commission on the Voting System was established by the Government in December 1997 under the Chairmanship of the Rt Hon Lord Jenkins of Hillhead. The Jenkins Commission recommended that "the best alternative to the first past the post system for Westminster elections would be a two-vote mixed system, described as either a limited additional member system or AV top-up".[79]

75.  Between 1997 and 2009, different electoral systems have been introduced and used for different elections in the UK, including the additional member system for elections to the Scottish Parliament and National Assembly for Wales, the supplementary vote system for the London mayor elections, and the single transferable vote for local government elections in Northern Ireland and Scotland, European Parliament elections in Northern Ireland and for the election of Northern Ireland Assembly members. The Government published the review of Voting Systems: the experience of voting systems on the United Kingdom since 1997 in January 2008 which sets out clearly the characteristics, advantages and disadvantages of alternative systems and the present system for the election of members to the House of Commons.[80]

76.  In Building Britain's Future the Government re-iterated its belief that the link between a Member of Parliament and the constituency was essential, but said that change could be considered if there were broad consensus in the country that it would strengthen democracy and politics by improving the effectiveness and legitimacy of both Government and Parliament. The Government said that proposals would be set out in order to take this debate forward.[81]

77.  We note and welcome the increasingly open debate about this issue by Ministers which includes, for example, the case put for electoral reform for the Commons by Rt Hon Alan Johnson MP, [82] and the case against put by Rt Hon Jack Straw MP. [83]

78.  There are two particular constitutional issues which require consideration in this context:

  • electoral reform for the House of Commons would need to be considered alongside any proposals for an elected House of Lords with particular reference to the mode and timetable for any such elections. For example, it is generally accepted that it would not be desirable to have the same electoral system for both Houses.
  • the mechanism for agreement to such a fundamental change, the question of whether a referendum would be required, and, if so, to what extent a referendum would provide for choice between different alternative systems.

IMPROVING YOUNG PEOPLE'S ENGAGEMENT IN POLITICS

79.  In April 2004, the Electoral Commission concluded a 12 month review of the voting age. They concluded that the minimum age for all levels of voting at UK public elections should remain at 18 years, but that the minimum candidacy age should be reduced from 21 to 18. The Governance of Britain Green Paper, published in July 2007, highlighted the need for the Government to engage with young people and encourage them to play an active part in British society. Julie Morgan MP presented a Private Member's Bill: Voting Age (Reduction) Bill, Session 2007-08, which did not receive a second reading because of lack of time. The Bill recommended the lowering of the voting age in all elections from the age of 18 to 16.

80.  The Youth Citizenship Commission was set up by the Government to examine ways of developing young people's understanding of citizenship and increase their participation in politics and included the idea of lowering of the voting age. The Commission's report, published on 26 June 2009, recommended that the Government should consider the lowering of the voting age.[84] The Government agreed to set out steps to increase the engagement of young people in politics, including "whether to give further consideration to a reduction in the voting age",[85] a phrase of puzzling indeterminacy.

81.  The overall effect of lowering the voting age would be to increase the number of people eligible to vote by 1.4 million. Changing the voting age has a number of resource and administrative implications, including additional government funding to enable administrative changes to be made. There would be a minimal increase in the running costs of the registration process, and some initial implementation costs to address the changes to registration software and fund a public awareness campaign.

Other reforms

FREEDOM OF INFORMATION

82.  In several reports this Committee has commended the Freedom of Information Act as a generally successful piece of legislation with far-reaching impact, and has put forward proposals to build on its success by further improvements.[86] The Government's proposals reflect the recommendations of the Dacre Review and the Ministry of Justice's consultation on broadening the application of Freedom of Information, held between October 2007 and February 2008. While broadening the application of Freedom of Information, the Government also wants to introduce safeguards under the current legislation. The Ministry of Justice told the BBC on 10 June: "In relation to Cabinet information, and information relating to the Royal Household, it has become clear that those safeguards are insufficiently robust to protect our current constitutional arrangements, and need changing. We will be announcing the detail of these changes in our full response, to be published shortly".[87]

83.  On 16 July 2009, the Ministry of Justice published its response to the consultation on broadening the application of the Freedom of Information Act.[88] The Government state "that responses to the consultation show considerable support for the principle of extending the coverage of the Act to additional organisations through a series of section 5 orders.[89] The Government propose to take this forward by "an initial, focused section 5 order to be accompanied by action outside the Act to promote proactive publication—by voluntary adoption of the Information Commissioner Offices' model publication scheme—and openness—by reminding public authorities and contractors of the existing guidance on access to information, which should inform contracting processes and response to requests for information".[90] We will continue to follow closely developments on these matters.

84.  We have previously expressed concerns about the funding of the Office of the Information Commissioner in respect of the freedom of information aspect of its work and the resulting backlog of cases.[91] We note the recent report from the Campaign for Freedom of Information expressing concern at continuing delays in the Information Commissioner Offices' investigation of freedom of information complaints.[92]

85.  We welcome the Government's intention to extend the application of the Freedom of Information Act to a wider range of bodies exercising public functions, but we also recognise the implications for the workload and resources of the Office of the Information Commissioner. We remain of the view that the Commissioner should be an officer of Parliament, like the Comptroller and Auditor General and the Ombudsman, funded by Parliament rather than the Executive.

Process

86.  There has been no effective process established to take the many constitutional proposals forward in an open and consultative manner. The Government's chosen mechanisms for change - the strangely titled Democratic Renewal Council and the Parliamentary Commission - are in effect a Cabinet committee and a House of Commons select committee respectively. Neither body could be described as an innovative mechanism for dealing with what is perhaps the most important and far reaching area of political debate in recent years, or the basis of wider public consultation.

87.  Building Britain's Future provided an outline of the process by which the Democratic Renewal Council would go about constitutional reform:

"The results of the consultation across the UK will be reported back to the Democratic Renewal Council to conclude in time to shape the Government's forward legislative programme and to feed into the Queen's speech. All proposed reforms will be underpinned by cross-party discussions. Our proposals will also be informed by leading external figures including academics and others who command public respect and have a recognised interest or expertise in the different elements of democratic reform".[93]

We sought further clarification on this process from Rt Hon Jack Straw MP, who simply described it (in this particular question in relation to consultation in relation to the Barnett Formula) as "listening to what people have to say … then there will finally be judgements made".[94] This sentiment was echoed by the Prime Minister in Liaison Committee on 16 July. He said: "the process for consultation has to be very wide and it would have to be very general and people would have to feel that there was a sense of involvement on their part of the issues that were of concern …"[95] However, he gave no indication of what that process might be or how it would be organised.

88.  The Government appears to be setting an over-optimistic timetable if it assumes that this process can be appropriately undertaken in time for November of this year. If the Government intends to conduct a genuine consultation process, this timetable is insufficient. If this timetable is to be met, we fear the consultation and consideration would lack substance. In any event it would be wrong to allow the timing of the general election to drive the process.

89.  A number of major constitutional reforms in the United Kingdom, including devolution in Scotland and Wales have been the subject of referendums. There was also a referendum on the creation of the Greater London Assembly and the London Mayor. Since then, there have been calls for referendums on the question of whether or not the United Kingdom should adopt the Euro, on the ratification of the Lisbon Treaty and on the United Kingdom's continued membership of the European Union. There has been some concern that the use of the referendum in bringing about major constitutional reform, has, to date, arisen from political considerations rather than constitutional principle.

90.  An important or complementary process to the binary choice offered by a referendum can be the establishment of a constitutional convention similar to that established in Scotland prior to the 1997 devolution referendum, which, it is widely accepted, made a positive contribution both to the development of devolution policy in Scotland and to public engagement with the process. Such a forum could be the means by which the questions for referendums are formed. Speaking in the Liaison Committee on 16 July, the Prime Minister acknowledged that there were "lessons to be learned from the constitutional convention in Scotland".[96]

91.  While referendums are only one mechanism by which the Government could seek public confirmation of major constitutional reforms, the decision on whether or not to have a referendum should be based on principle rather than political expediency. Otherwise, the risk is that the decision of whether or not to hold a referendum becomes an issue of political controversy, thereby potentially further undermining public trust and the legitimacy of reform. Rt Hon Jack Straw MP told us that he "never thought a referendum was simply a matter of expediency" and that, in his view, you should "have a referendum for major constitutional change which is going to alter the fundamental landscape of our constitutional arrangements".[97]

92.  We welcome the Government's commitment to a wide ranging discussion of a broad spectrum of proposals for major constitutional reform. Getting this right is crucial. We are not satisfied that the process for constitutional reform outlined in Building Britain's Future is adequate for changes of such magnitude and significance. A more systematic and established process is required, which could include, for some changes, a constitutional convention to work through the more complex issues, and a referendum on fundamental changes.



57   Prime Minister, Building Britain's Future, Cm 7654, June 2009, p 26 Back

58   Cm 7438 Back

59   Cm 7438 Back

60   Prime Minister, Building Britain's Future, Cm 7654 June 2009, para 20, p 29.  Back

61   Q 54 Back

62   Q 53 Back

63   As set out in the White Paper, An Elected Second Chamber, July 2008, Cm 7438

 Back

64   Para 20, p 30 Back

65   HC Deb, 10 June 2009, col 798 Back

66   Para 20, p 30 Back

67   Q 61 Back

68   Q 61 Back

69   Q 241 Back

70   Justice Committee, Fifth Report of Session 2008-09, Devolution: a decade on, HC 529-I Back

71   Para 154, Devolution: a decade on Back

72   For more information see Justice Committee, Fifth Report of Session 2008-09, Devolution: a decade on, HC 529-I Back

73   See also, Communities and Local Government Select Committee Report, Is there a future for Regional Government? Back

74   Standing Order 117A. On 25 June 2009, the House passed a series of motions setting the dates for the first meeting of each of these committees. Back

75   Explanatory Memorandum on the Motions in the Name of the Leader of the House, debated in the House on 12 November 2008 Back

76   The Governance of Britain, Cm. 7170, paragraph 118. Back

77   Q 680 Back

78   Communities and Local Government Committee, Sixth Report of Session 2008-09, The balance of power: central and local government, HC 33-I Back

79   Home Office, The Report of the Independent Commission on the Voting System, Cm 4090 Back

80   Cm 7301 Back

81   Page 30 Back

82   "Labour must embrace voting reform", The Independent, 8 July 2009 Back

83   Qq 80-82 Back

84   www.ycc.uk.net/news/YCC%20-%20Press%20release.doc Back

85   Building Britain's Future, page 30 Back

86   See appendix A for a full list Back

87   "Cabinet papers to stay secret", BBC website, 10 June 2009; available at http://news.bbc.co.uk/1/hi/uk_politics/8093764.stm Back

88   Ministry of Justice, Freedom of Information Act 2000: Designation of additional public bodies: response to Consultation CP(R) 27/07, 16 July 2009 Back

89   HC Deb, 16 July 2009, col 65WS Back

90   At present, the bodies to be included in the first section 5 order are: Academy schools; Association of Chief Police Officers; Financial Ombudsman Service and UCAS. The Government will consult these bodies directly and aim to bring forward a section 5 order early in the next session of Parliament.  Back

91   For example, Justice Committee, Third Report of Session 2008-09, The work of the Information Commissioner: appointment of a new Commissioner, HC 146, para 36 Back

92   Campaign for Freedom of Information, Delays in Investigating Freedom of information Complaints, 3 July 2009 Back

93   Building Britain's Future, para 21, page 30.  Back

94   Q 68 Back

95   Q 240 Back

96   Q 241 Liaison Committee Back

97   Q 16 Back


 
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