Part 4 Background - Public Order

55.     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.

56.     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:

57.     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.

58.     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.

59.     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

60.     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.

61.     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.

62.     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.

63.     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.

64.     These clauses therefore insert a one year time limit for bringing claims involving Convention rights against actions of the devolved administrations in Wales, Scotland and Northern Ireland.

65.     Clause 36 repeals the Convention Rights Proceedings (Amendment) (Scotland) Act 2009, an Act of the Scottish Parliament, whilst also re-enacting the amendments made by that Act to the Scotland Act 1998.

66.     Clause 36 also revokes the Scotland Act 1998 (Modification of Schedule 4) Order 2009, an Order made under section 30(2) of the Scotland Act, which enabled the Scottish Parliament to pass the Convention Rights Proceedings (Amendment) (Scotland) Act 2009.

Part 6 Background - Courts and Tribunals

67.     Part 6 of the Bill provides for the protection of the salaries of various members of tribunals. The current position is that members of tribunals do not have salary protection but certain judicial office holders in the courts’ system do have salary protection. Part 6 of the Bill also provides for the protection of the salaries of certain judicial office holders in Northern Ireland. Effect is also given to Schedule 6 to the Bill.

68.     Schedule 6 makes adjustment to the existing functions of the executive and judiciary in relation to judicial appointments and other judiciary related matters in the context of the Government’s wider programme, The Governance of Britain. The Government published The Governance of Britain - Judicial Appointments (Cm 7210) on 25 October 2007. This document can be found at:

69.     A detailed analysis of the consultation responses can be found in The Governance of Britain - Analysis of Consultations (Cm 7342-3).

70.     The proposals remaining in the Bill have been pared down from those outlined in the publications above but continue to address the functions of the executive and judiciary in relation to judicial appointments.

71.     The provisions also remove the Prime Minister from the process of appointments of the President, Deputy President and judges of the Supreme Court.

Part 7 Background - National Audit

72.     The office of Comptroller and Auditor General (“C&AG”) was created in 1866 when the role of the Comptroller of the Exchequer was combined with that of the Commissioners for Audit. The C&AG is still appointed under the Exchequer and Audit Departments Act 1866 (“the 1866 Act”). The National Audit Act 1983 (“the 1983 Act”) built on that framework and provided for the C&AG to be head of the National Audit Office (“NAO”), an office which consists of the C&AG and the staff appointed by the C&AG. The C&AG audits the accounts of government departments and a wide range of other public bodies under a number of statutory powers. Under the 1983 Act, the C&AG carries out “value for money” examinations of the way in which departments and other public bodies have used their resources. In addition, the C&AG audits certain public funds and has rights of inspection and examination over other bodies which receive public money.

73.     Under the 1983 Act, a committee of Members of Parliament, the Public Accounts Commission (“the Commission”), was set up to oversee the activities of the C&AG and the NAO. Its functions include agreeing the voted resources of the NAO. In July 2007, the Commission initiated a review of the corporate governance arrangements of the NAO to ensure that they conformed to best practice. The Commission’s Report was published as HC 402 on 6 March 2008. That document is available here:

74.     The Commission recommended that the NAO should remain the Government’s auditor, independent of Government and answerable directly to Parliament through the Commission. Its audit reports, both financial and value for money, should continue to be laid in Parliament and the Committee of Public Accounts (PAC) would continue to hold scrutiny hearings on some of them. As chief executive of the NAO, the C&AG should continue to lead its audit work and to make professional judgements on its audit reports.

75.     However, the Commission said that the NAO should also have a board with a majority of non-executives, including a non-executive chair. The board would be charged with setting the strategic direction for the NAO and supporting the C&AG. The C&AG would have a fixed term of ten years instead of the current unlimited term. Former C&AGs would not be able to work for bodies that are subject to NAO’s audit or inspection for two years after they leave office.

76.     The Government accepted the Commission’s recommendations and agreed to implement them through the Constitutional Reform and Governance Bill. When the Commission met on 16 December 2008, it published the Government’s draft clauses and (subject to a recommendation that the C&AG’s pay should be linked to that of the Lord Chief Justice and that the employment restrictions for former C&AGs should last for five years) said it was content with the draft clauses. Its recommendations are available here:

77.     The Government of Wales Act 2006 provides that the National Assembly for Wales may pass legislation known as Assembly Measures, in relation to the "matters" specified in Part 1 of Schedule 5 to that Act. Clause 56 will add a new matter which will enable the Assembly to legislate to put in place new arrangements for the Auditor General for Wales and the Wales Audit Office. Those arrangements could be comparable to the ones set out in the rest of Part 7 of the Bill for the Comptroller and Auditor General and the National Audit Office. There is a distinct public audit structure for devolved bodies in Wales, and the Bill gives the National Assembly power to put in place different arrangements for the oversight, supervision and accountability of the Auditor General for Wales. At the same time, it ensures that the independence of the Auditor General’s operational audit work is maintained.

Part 8 Background - Transparency of Government financial reporting to Parliament

78.     There are a number of different systems for presenting Government expenditure. These include budgets, Supply Estimates presented to Parliament for approval and resource accounts prepared by departments at the end of each financial year.

79.     These different systems mean that there is significant misalignment between the different bases on which financial information is presented to Parliament and the public. Government financial documents are published in different formats, and on a number of different occasions during the year. This makes it difficult to understand the links and inter-relationships between them.

80.     The Government announced in The Governance of Britain Green Paper in July 2007 a “Clear Line of Sight” (Alignment) Project to simplify its financial reporting to Parliament by better aligning budgets, Estimates and resource accounts. The Treasury submitted detailed proposals for better alignment to Parliament in a Memorandum in March 2009 (Cm 7567). The Liaison Committee of the House of Commons responded to the Government's proposals in its report Financial Scrutiny: Parliamentary Control over Government’s Budgets (HC 804), published on 3 July 2009. The report accepts, on behalf of the relevant House of Commons Select Committees, all of the Government's proposals for a better aligned public spending framework as set out in Cm 7567.

81.     Part 8 deals with one aspect of the work of that Project. At present, the spending of Non-Departmental Public Bodies and other central government bodies falls within the budget of the parent department (the government department with policy responsibility for that activity) but falls outside the departmental boundary for Supply Estimates (departmental spending plans approved by Parliament) and resource accounts. Clause 57 amends the Government Resources and Accounts Act 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.

82.     Clause 58 amends part 5 of the Government of Wales Act 2006 (“GOWA 2006”). The changes are intended to simplify the arrangements for financial reporting and accountability to the National Assembly for Wales (the “Assembly”). This will be achieved by better aligning the contents of the annual budget motion with the use of the resources set out in the resource accounts produced by Ministers and other persons to whom the Assembly votes resources.

83.     There are a number of Assembly Government Sponsored Public Bodies (“AGSBs”) and other organisations in Wales that are classified as central government bodies and are funded, wholly or to a significant degree, by Welsh Ministers. At present, the Assembly is not asked to authorise the use of resources by AGSBs and other central government bodies operating in Wales, and it is therefore more difficult for Ministers to align the resources included within the annual budget motion with those included in the Welsh Ministers’ resource accounts.

84.     As referred to above, the Assembly votes resources to some persons other than the Welsh Ministers. These persons are described as “relevant persons” in section 124(3) of the GOWA 2006. They are: the National Assembly for Wales Commission, the Auditor General for Wales and the Public Services Ombudsman for Wales. These other “relevant persons” could also fund bodies in Wales that would be classified as belonging to central government. Therefore, the changes to the GOWA 2006 made by clause 58 apply to those “relevant persons”, as well as to the Welsh Ministers.

85.     Clause 58 amends the GOWA 2006 in order to give Welsh Ministers the power to designate bodies for the purpose of enabling a budget motion to include information relating to the resources expected to be used by that body. It also includes provision that requires the Welsh Ministers to obtain the consent of the Treasury before designating any body that receives funding from the UK Consolidated Fund or a devolved Consolidated Fund other than the Welsh Consolidated Fund. This is intended to avoid duplicate or erroneous designations, and the accounting problems that would ensue.

TERRITORIAL EXTENT

86.     The provisions of the Bill extend to England and Wales while certain provisions also extend to Scotland and Northern Ireland. The Bill largely addresses reserved and excepted matters although there are some provisions that affect the functions of the Devolved Administrations.

87.     At introduction this Bill contains provisions that trigger the Sewel Convention in relation to Scotland. The provisions relate to the Civil Service clauses and are outlined below:

• Civil Service Codes - clause 5 requires the First Minister of Scotland to lay before the Scottish Parliament any separate Civil Service code that applies to civil servants serving the Scottish Executive.

• Special Advisers Code - clause 8 requires the First Minister of Scotland to lay the special advisers code before the Scottish Parliament.

• Special Advisers - clause 15 prescribes requirements that the First Minister for Scotland must apply when appointing Special Advisers to assist members of the Scottish Executive.

• Special Advisers Report - clause 16 requires the First Minister of Scotland to prepare an annual report about special advisers appointed to assist members of the Scottish Executive and to lay this before the Scottish Parliament.

• Civil Service Commission’s Report - Schedule 1, paragraph 17(5) requires the First Minister of Scotland to lay the Civil Service Commission’s report before the Scottish Parliament.

• Requirements to provide information - clauses 9(6), 13(4), 14(2) and 17(3) impose requirements to provide information to the Civil Service Commission. Those requirements can apply to parts of the Scottish Administration.

88.     The Sewel Convention provides that the UK Parliament will not normally legislate with regard to devolved matters in Scotland, or alter the executive competence of Scottish Ministers, without the consent of the Scottish Parliament. If there are any amendments to the Bill during its passage which trigger the Convention, the consent of the Scottish Parliament will also be sought for those amendments. Clause 36, which was added at Committee stage in the House of Commons in the previous Parliamentary session, requires the consent of the Scottish Parliament in so far as it affects the legislative competence of the Scottish Parliament.

89.     The Bill contains provisions which confer functions on Welsh Ministers and affect their responsibilities:

• These include provisions in Part 1 requiring that they are consulted about the Civil Service and special advisers code and requiring them to lay the codes and the Commission’s reports before the Assembly.

• In Part 5 creating a time limit for human rights claims brought against them under the Government of Wales Act 2006.

• In Part 8 giving them the power to designate bodies that must be included in Assembly budget motions.

90.     The Bill also contains other provisions that do not require a Legislative Consent Motion but which make incidental changes to Scots law and the law in Northern Ireland.

COMMENTARY ON CLAUSES

PART 1: THE CIVIL SERVICE ETC

CHAPTER 1

Clause 1: Application of Chapter

91.     Clause 1 applies Chapter 1 of Part 1 of the Bill to the Civil Service of the State, subject to the exclusions listed in subsections (2) and (3). The terms Civil Service and civil servant throughout this Chapter are therefore to be read as excluding those parts of the Civil Service listed in subsections (2) and (3) and the civil servants in those parts of the Civil Service.

Clause 2: Establishment of the Civil Service Commission

92.     Subsection (1) establishes the Civil Service Commission as a body corporate with legal personality.

93.     Subsections (3) and (4) set out the main function of the Commission. This concerns recruitment to the Civil Service, covered in clauses 11 to 14. Reference is also made to the Commission’s other functions concerning complaints to the Commission under the Civil Service and Diplomatic Service codes of conduct (clause 9).

Clause 3: Management of the Civil Service

94.     Clause 3 provides 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. The power to manage includes the power to appoint and dismiss. The general power to manage the Civil Service, including the power of appointment and dismissal, set out in the Bill must be read in conjunction with other clauses in the Bill, in particular provisions about the Civil Service Commission and requirements about fair and open competition. The power to appoint and dismiss individual civil servants will, as now, continue to be delegated to the Head of the Civil Service and the permanent Heads of Departments provided for under existing statutory powers in the Civil Service (Management Functions) Act 1992.

95.     Subsection (4) expressly excludes national security vetting from the power to manage the Civil Service and the Diplomatic Service. This confirms that national security vetting will continue to be carried out under existing prerogative powers.

96.     Subsection (5) requires the Secretary of State to seek the agreement of the Minister for the Civil Service in relation to remuneration and retirement conditions for civil servants in the diplomatic service.

Clause 4: Other statutory management powers

97.     Subsections (1), (2) and (3) provide that statutory powers of management of the Civil Service (whether before or after the Act comes into force) are subject to the powers to manage the Civil Service in clause 3.

98.     Subsection (5) expressly excludes the statutory management powers set out in the Superannuation Acts from the general power to manage by the Minister for the Civil Service provided in clause 3.

Clause 5: Civil service code

99.     Clause 5 makes provision for codes of conduct for the Civil Service (with the exception of the diplomatic service). Clause 5 enables the Minister to publish separate codes of conduct for civil servants in the Scottish Executive or the Welsh Assembly Government after first consulting the First Ministers of Scotland and Wales on the content of the code relevant to their respective administrations. The codes published under this clause will be along the lines of the existing Civil Service codes, covering civil servants in the UK Departments in the Civil Service, the Scottish Executive and the Welsh Assembly Government respectively. Copies of the existing codes can be viewed at the following websites:

100.     There is no Parliamentary procedure attached to the obligation in subsection (5) for the Minister for the Civil Service to lay the Code before Parliament. The First Ministers of Scotland and Wales are also required to lay the code relevant to their administration before the Scottish Parliament and Welsh Assembly respectively. Under subsection (8) the applicable code or codes form part of a civil servant’s terms and conditions.

Clause 6: Diplomatic service code

101.     Clause 6 makes provision for a code of conduct for the diplomatic service which will be along the lines of the existing code for the diplomatic service, the Diplomatic Service Code of Ethics. The code reflects the core principles of the Civil Service code of conduct. This code must be laid before Parliament, but there is no Parliamentary procedure. Under subsection (4) the code forms part of the terms and conditions for civil servants in the diplomatic service.

Clause 7: Minimum requirements for Civil Service and diplomatic service codes

102.     Clause 7 sets out the minimum requirements for the Civil Service and diplomatic service codes of conduct. Subsections (2) and (3) require civil servants in the UK, Scotland or Wales, to serve the administration of the day, whatever its political complexion. By subsection (4) the code must contain an obligation on civil servants to carry out their duties in accordance with the core Civil Service values of integrity, honesty, objectivity and impartiality. Subsection (5) concerns the provisions of the codes as they apply to special advisers. Clause 8 makes separate provision for the special advisers code.

Clause 8: Special advisers code

103.     Clause 8 makes provision for a code of conduct for special advisers. The code published under this clause will be along the lines of the existing special advisers’ code, which can be viewed at the following website:

104.     Clause 8 enables the Minister for the Civil Service to publish separate codes of conduct for special advisers who serve the Scottish Executive or the Welsh Assembly Government after first consulting the First Ministers of Scotland and Wales on the content of the code relevant to their respective administrations.

105.     There is no Parliamentary procedure attached to the obligation in subsection (5) for the Minister for the Civil Service to lay the Code before Parliament. The First Ministers of Scotland and Wales are also required to lay the code relevant to their administration before the Scottish Parliament and Welsh Assembly respectively.

106.     Under subsection (8) the applicable code or codes form part of a special adviser’s terms and conditions.