Joint Committee on the Draft Constitutional Renewal Bill First Report


ABSTRACT



The Government's Governance of Britain Green Paper was launched in July 2007 with an aim to "begin the journey towards a new constitutional settlement—a settlement that entrusts Parliament and the people with more power". The Government would "seek to surrender or limit" those powers which it considered "should not, in a modern democracy, be exercised exclusively by the executive". Building on the Green Paper, the Draft Constitutional Renewal Bill and White Paper, published on 25 March 2008, set out proposals "to reform various aspects of our constitutional settlement". The Joint Committee was set up on 6 May to undertake pre-legislative scrutiny of the Draft Bill, and our report follows reports from the House of Commons Public Administration and Justice Select Committees on aspects of the Draft Bill.

We recognise that the Draft Bill is a first step in a wider programme of reforms to the constitution recommended in the Green Paper and we commend the Government for taking these first steps towards its stated objective of making Government more accountable to Parliament. However, we have found it difficult to discern the principles underpinning the Draft Bill and we ask the Government to reflect further on whether "Constitutional Renewal" is an appropriate title. It is clear to us that further work is required before the Bill will be ready for introduction in the next session of Parliament. Our inquiry covered six policy areas in the Draft Bill and White Paper:

Protests around Parliament: We endorse the Government's general presumption that protest must not be subject to unnecessary restrictions, particularly given the significance of Parliament Square as a place to express political views. At the same time, the right to protest must be balanced against ensuring that the police and other authorities have adequate powers to safeguard the proper functioning of Parliament and to protect the enduring amenity value of Parliament Square as a cultural site of international significance. We support the proposal to repeal sections 132 to 138 of the Serious Organised Crime and Police Act 2005 (SOCPA), and in particular, the removal of the legal requirement to obtain prior authorisation to protest in vicinity of Parliament. Before these sections are repealed, further work needs to be done to create a framework to ensure the police have adequate powers.

The Attorney General and prosecutions: On balance, we are not persuaded of the case put forward by the Justice Committee and others to separate the Attorney General's legal and political functions and we support the Government's proposals that the Attorney should retain these two roles. Unlike the Government, however, we believe that the Attorney should retain the "nuclear option" to give a direction in relation to any individual case, including cases relating to national security. Given our conclusions in Chapter 3, we question whether there is a need for legislation in respect of the Attorney.

Courts and tribunals: We conclude that it is far too soon to propose significant reforms only two years after the Constitutional Reform Act 2005 introduced a carefully calibrated balance between the roles of the Executive, judiciary and the newly-created Judicial Appointments Commission (JAC). Although we acknowledge the short period of time in which the JAC has been operating, we are disappointed with the lack of measurable progress towards increasing diversity at all levels of the judiciary; and the JAC and others need to continue exploring the best ways of addressing this important issue.

Treaties: We agree that putting the Ponsonby Rule on a statutory footing, together with giving the House of Commons an effective veto on the ratification of a treaty, is a positive and beneficial reform. We recommend a new Joint Committee on Treaties which would sift treaties presented to Parliament; support existing select committees in the scrutiny of treaties; enhance the scrutiny of treaty-like documents not covered by the proposed legislation; and have a role in extending the 21 sitting days allowed for scrutiny where exceptional circumstances make this necessary.

Civil service: We welcome the Government's intention to put the civil service and the Civil Service Commission on a statutory footing and set out the historic principle of appointment on merit on the basis of fair and open competition, 154 years after Northcote and Trevelyan called for a Civil Service Act. Ideally, we would like to see this as a separate Civil Service Act rather than part of wider constitutional legislation.

War powers: We agree with the Government's case for strengthening Parliamentary involvement in armed conflict decisions, and that a detailed resolution approach is a well balanced and effective way of proceeding. But we are concerned about the definition of "conflict decision" in the White Paper and we recommend that the Government take steps to ensure that ongoing deployments are subject to effective Parliamentary scrutiny.

Overall: We encourage the Government to use this opportunity to make progress beyond these first steps. It would be regrettable if the passing of this Bill prevented further progress in other fundamental areas of reform. Many of the ideas set out in the Green Paper have not yet been brought forward into the Draft Bill and we recommend that the Government think again about the long title to enable Parliament to consider wider issues of constitutional reform during the passage of the Bill.


 
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Prepared 31 July 2008