Constitutional Reform and Governance Bill

House of Commons

Session 2009 - 10
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Other Bills before Parliament

Constitutional Reform and Governance Bill

Constitutional Reform and Governance Bill
Part 1 — The civil service etc
Chapter 1 — Statutory basis for management of the civil service
7

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Approvals for selections and exceptions
(1)
The recruitment principles may include provision—
(a)
requiring the Commission’s approval to be obtained for a selection
which is subject to the requirement in section 10(2);
(b)
excepting a selection from that requirement for the purposes of section
5
10(3)(c).
(2)
The Commission may participate in the process for a selection for which its
approval is required by provision within subsection (1)(a).
(3)
It is up to the Commission to decide how it will participate.
(4)
Provision within subsection (1)(b) may be included only if the Commission is
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satisfied—
(a)
that the provision is justified by the needs of the civil service, or
(b)
that the provision is needed to enable the civil service to participate in
a government employment initiative that major employers in the
United Kingdom (or a part of the United Kingdom) have been asked to
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participate in.
(5)
Provision within subsection (1)(a) or (b) may be made in any way, including
(for example) by reference to—
(a)
particular appointments or descriptions of appointments;
(b)
the circumstances in which a selection is made;
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(c)
the circumstances of the person to be selected;
(d)
the purpose of the requirement to obtain approval or the purpose of the
exception.
(6)
Provision within subsection (1)(b) may also (for example)—
(a)
deal with the way in which selections made in reliance on section
25
10(3)(c) are to be made;
(b)
specify terms and conditions that must be included in the terms and
conditions of an appointment resulting from a selection made in
reliance on section 10(3)(c).
(7)
Provision within subsection (1)(a) or (b) may confer discretions on the
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Commission or civil service management authorities.
13
Complaints about competitions
(1)
Subsection (2) applies if a person has reason to believe that a selection for an
appointment has been made in contravention of the requirement in section
10(2).
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(2)
The person may complain to the Commission about the matter.
(3)
The Commission—
(a)
may determine steps that must be taken by a person before making a
complaint (and those steps must be taken accordingly);
(b)
must determine procedures for the making of complaints and for the
40
investigation and consideration of complaints by the Commission;
(c)
after considering a complaint, may make recommendations about how
the matter should be resolved.

Constitutional Reform and Governance Bill
Part 1 — The civil service etc
Chapter 1 — Statutory basis for management of the civil service
8

(4)
For the purposes of the investigation or consideration of a complaint, the
following must provide the Commission with any information it reasonably
requires—
(a)
civil service management authorities;
(b)
the complainant.
5
14
Monitoring by the Commission
(1)
The Commission must carry out whatever reviews of recruitment policies and
practices it thinks are necessary to establish—
(a)
that the principle of selection on merit on the basis of fair and open
competition is being upheld in accordance with the requirement in
10
section 10(2) and the recruitment principles, and
(b)
that the requirement in section 10(2) and the recruitment principles are
not being undermined in any way (apart from non-compliance).
(2)
For this purpose, civil service management authorities must provide the
Commission with any information it reasonably requires.
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Special advisers
15
Definition of “special adviser”
(1)
In this Chapter “special adviser” means a person (“P”) who holds a position in
the civil service serving an administration mentioned below and whose
appointment to that position meets the applicable requirements set out below.
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Her Majesty’s Government in the United Kingdom

The requirements are—
(a)
P is appointed to assist a Minister of the Crown after being selected for
the appointment by that Minister personally;
(b)
the appointment is approved by the Prime Minister;
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(c)
the terms and conditions of the appointment (apart from those by
virtue of section 8(8)) are approved by the Minister for the Civil Service;
(d)
those terms and conditions provide for the appointment to end not later
than—
(i)
when the person who selected P ceases to hold the ministerial
30
office in relation to which P was appointed to assist that person,
or
(ii)
if earlier, the end of the day after the day of the poll at the first
parliamentary general election following the appointment.
Scottish Executive
35

The requirements are—
(a)
P is appointed to assist the Scottish Ministers (or one or more of the
ministers mentioned in section 44(1)(a) and (b) of the Scotland Act 1998
(c. 46)) after being selected for the appointment by the First Minister for
Scotland personally;
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(b)
the terms and conditions of the appointment (apart from those by
virtue of section 8(8)) are approved by the Minister for the Civil Service;

Constitutional Reform and Governance Bill
Part 1 — The civil service etc
Chapter 1 — Statutory basis for management of the civil service
9

(c)
those terms and conditions provide for the appointment to end not later
than when the person who selected P ceases to hold office as First
Minister.

The reference above to the Scottish Ministers excludes the Lord Advocate and
the Solicitor General for Scotland.
5
Welsh Assembly Government

The requirements are—
(a)
P is appointed to assist the Welsh Ministers (or one or more of the
ministers mentioned in section 45(1)(a) and (b) of the Government of
Wales Act 2006 (c. 32)) after being selected for the appointment by the
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First Minister for Wales personally;
(b)
the terms and conditions of the appointment (apart from those by
virtue of section 8(8)) are approved by the Minister for the Civil Service;
(c)
those terms and conditions provide for the appointment to end not later
than when the person who selected P ceases to hold office as First
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Minister.
(2)
In subsection (1), in relation to an appointment for which the selection is made
personally by a person designated under section 45(4) of the Scotland Act 1998
(c. 46) or section 46(5) of the Government of Wales Act 2006, the reference to
the person who selected P ceasing to hold office as First Minister for Scotland
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or Wales (as the case may be) is to be read as a reference to the designated
person ceasing to be able to exercise the functions of the First Minister by virtue
of the designation.
16
Annual reports about special advisers
(1)
The Minister for the Civil Service must—
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(a)
prepare an annual report about special advisers serving Her Majesty’s
Government in the United Kingdom, and
(b)
lay the report before Parliament.
(2)
The First Minister for Scotland must—
(a)
prepare an annual report about special advisers serving the Scottish
30
Executive, and
(b)
lay the report before the Scottish Parliament.
(3)
The First Minister for Wales must—
(a)
prepare an annual report about special advisers serving the Welsh
Assembly Government, and
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(b)
lay the report before the National Assembly for Wales.
(4)
A report under this section must contain information about the number and
cost of the special advisers.
Additional functions of the Commission
17
Agreements for the Commission to carry out additional functions
40
(1)
The Minister for the Civil Service and the Commission may agree that the
Commission is to carry out functions in relation to the civil service in addition
to those given to it under the other provisions of this Chapter.

Constitutional Reform and Governance Bill
Part 1 — The civil service etc
Chapter 3 — Northern Ireland
10

(2)
The Commission is to carry out those additional functions accordingly.
(3)
For the purposes of any additional function, civil service management
authorities must provide the Commission with any information it reasonably
requires.
Final provisions
5
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Definitions etc
(1)
In this Chapter—
“civil servant” is read as stated in section 1(4);
“civil service” is read as stated in section 1(4);
“civil service code” is defined in section 5(4);
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“civil service management authority” means any person involved in the
management of any part of the civil service;
“the Commission” is defined in section 2(1);
“diplomatic service” means Her Majesty’s diplomatic service;
“diplomatic service code” is defined in section 6(2);
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“function” includes power or duty;
“information” means information recorded in any form;
“recruitment principles” is defined in section 11(3);
“special adviser” is defined in section 15;
“special advisers code” is defined in section 8(4).
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(2)
Subsection (3) applies for the purposes of sections 9(6), 13(4), 14(2) and 17(3).
(3)
No person may be required to provide information which the person could not
be compelled to provide in civil proceedings before the High Court or the
Court of Session.
Chapter 2
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Consequential and transitional provision
19
Consequential amendments and transitional provision
Schedule 2 (which contains amendments consequential on this Part and
transitional provision) has effect.
Chapter 3
30
Northern Ireland
20
The Civil Service Commissioners for Northern Ireland
(1)
The Northern Ireland Act 1998 (c. 47) is amended as follows.
(2)
In paragraph 21 of Schedule 2 (excepted matters) after “1973” insert “(other
than section 36(1)(c))”.
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Constitutional Reform and Governance Bill
Part 1 — The civil service etc
Chapter 4 — Crown employment: nationality
11

(3)
In paragraph 16 of Schedule 3 (reserved matters) after “Ireland” insert “and any
matter with which section 36(1)(c) of the Northern Ireland Constitution Act
1973 solely or mainly deals”.
(4)
In Part 3 of Schedule 1 to the Northern Ireland Assembly Disqualification Act
1975 (c. 25), at the appropriate place, insert “Civil Service Commissioner for
5
Northern Ireland”.
Chapter 4
Crown employment: nationality
21
Removal of existing nationality requirements
(1)
Section 3 of the Act of Settlement (1700 c. 2) (which, subject to exceptions,
10
prevents persons born outside the United Kingdom from holding certain
offices) does not prevent any person from being employed or holding office in
a civil capacity under the Crown.
(2)
In the Aliens Restriction (Amendment) Act 1919 (c. 92), omit section 6 (which,
subject to exceptions, prevents the appointment of aliens to posts in the Civil
15
Service).
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Power to impose new nationality requirements
(1)
Rules may be made imposing requirements as to nationality which must be
satisfied by a person employed or holding office in a civil capacity under the
Crown in a reserved post.
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(2)
A post is a reserved post if—
(a)
it is a post in any of the security and intelligence services, or
(b)
it is within subsection (3) or (4), and a Minister of the Crown has
determined that it is necessary for requirements as to nationality to be
satisfied in relation to the post.
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(3)
The posts within this subsection are—
(a)
posts in Her Majesty’s diplomatic service and posts in the Foreign and
Commonwealth Office, and
(b)
posts in the Defence Intelligence Staff.
(4)
The posts within this subsection are posts whose functions are concerned
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with—
(a)
access to intelligence information received directly or indirectly from
any of the security and intelligence services,
(b)
access to other information which, if disclosed without authority or
otherwise misused, might damage the interests of national security,
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(c)
access to other information which, if disclosed without authority or
otherwise misused, might be prejudicial to the interests of the United
Kingdom or the safety of its citizens, or
(d)
border control or decisions about immigration.
(5)
A determination under subsection (2)(b) may relate to a particular post or
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posts, or to posts falling within a description specified in the determination.
(6)
In this section “the security and intelligence services” means—

Constitutional Reform and Governance Bill
Part 1 — The civil service etc
Chapter 4 — Crown employment: nationality
12

(a)
the Security Service,
(b)
the Secret Intelligence Service, and
(c)
the Government Communications Headquarters.
(7)
The rules may also—
(a)
impose requirements as to nationality which must be satisfied in the
5
case of persons connected with a person who must satisfy requirements
imposed under subsection (1), and
(b)
provide that any requirement imposed under paragraph (a) may be
treated as satisfied if a connected person has or had substantial ties with
the United Kingdom.
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(8)
For the purposes of this section the following are connected with a person—
(a)
any parent or deceased parent of the person,
(b)
any spouse or civil partner of the person,
(c)
any person living together with the person as if they were spouses or
civil partners, or
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(d)
any parent of a person within paragraph (b) or (c).
(9)
The rules are to be made by a Minister of the Crown.
(10)
The rules may include provision—
(a)
exempting persons of a description specified in the rules (and persons
connected with them) who were first employed, or first held office, in
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the post in question before a specified date, and
(b)
allowing the granting of exemptions by the appropriate person.
(11)
In subsection (10)(b) “the appropriate person” means—
(a)
in the case of posts in the Security Service, the Director-General of the
Security Service or a person nominated by the Director-General of the
25
Security Service,
(b)
in the case of posts in the Secret Intelligence Service, the Chief of the
Secret Intelligence Service or a person nominated by the Chief of the
Secret Intelligence Service,
(c)
in the case of posts in the Government Communications Headquarters,
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the Director of the Government Communications Headquarters or a
person nominated by the Director of the Government Communications
Headquarters, and
(d)
otherwise, a Minister of the Crown.
(12)
The references in—
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(a)
section 75(5)(b) of the Race Relations Act 1976 (c. 74) (rules relating to
nationality etc. of persons employed in service of Crown), and
(b)
Article 71(5)(b) of the Race Relations (Northern Ireland) Order 1997 (S.I.
1997/869 (N.I. 6)) (corresponding provision for Northern Ireland),

to the implementation of rules include the grant of (or refusal to grant)
40
exemptions under subsection (10)(b).
(13)
The power of a Minister of the Crown to make rules under this section is
exercisable by statutory instrument.
(14)
A statutory instrument containing rules under this section is subject to
annulment in pursuance of a resolution of either House of Parliament.
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Constitutional Reform and Governance Bill
Part 2 — Ratification of treaties
13

(15)
Nothing in this section limits any power to impose a requirement which is not
a requirement as to nationality even if the ability of a person to satisfy the
requirement may be affected by the nationality of the person or any other
person.
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Repeals and revocations
5
Schedule 3 (which contains repeals and revocations relating to this Chapter)
has effect.
Part 2
Ratification of treaties
24
Treaties to be laid before Parliament before ratification
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(1)
Subject to what follows, a treaty is not to be ratified unless—
(a)
a Minister of the Crown has laid before Parliament a copy of the treaty,
(b)
the treaty has been published in a way that a Minister of the Crown
thinks appropriate, and
(c)
period A has expired without either House having resolved, within
15
period A, that the treaty should not be ratified.
(2)
Period A is the period of 21 sitting days beginning with the first sitting day
after the date on which the requirement in subsection (1)(a) is met.
(3)
Subsections (4) to (6) apply if the House of Commons resolved as mentioned in
subsection (1)(c) (whether or not the House of Lords also did so).
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(4)
The treaty may be ratified if—
(a)
a Minister of the Crown has laid before Parliament a statement
indicating that the Minister is of the opinion that the treaty should
nevertheless be ratified and explaining why, and
(b)
period B has expired without the House of Commons having resolved,
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within period B, that the treaty should not be ratified.
(5)
Period B is the period of 21 sitting days beginning with the first sitting day after
the date on which the requirement in subsection (4)(a) is met.
(6)
A statement may be laid under subsection (4)(a) in relation to the treaty on
more than one occasion.
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(7)
Subsection (8) applies if—
(a)
the House of Lords resolved as mentioned in subsection (1)(c), but
(b)
the House of Commons did not.
(8)
The treaty may be ratified if a Minister of the Crown has laid before Parliament
a statement indicating that the Minister is of the opinion that the treaty should
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nevertheless be ratified and explaining why.
(9)
“Sitting day” means a day on which both Houses of Parliament sit.
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Extension of 21 sitting day period
(1)
A Minister of the Crown may, in relation to a treaty, extend the period
mentioned in section 24(1)(c) by 21 sitting days or less.
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