Joint Committee on the Draft Constitutional Renewal Bill First Report

Draft Constitutional Renewal Bill


The Joint Committee

1._The Draft Constitutional Renewal Bill was published by the Ministry of Justice and laid before Parliament on 25 March 2008. The Joint Committee on the Draft Bill was appointed by a motion of the House of Commons on 30 April and a motion of the House of Lords on 6 May with terms of reference to "consider and report on" the Draft Bill by 18 July 2008. We sought, and were granted, an extension of this reporting deadline to 22 July.[1]

Setting the context

2._The Governance of Britain agenda was launched in July 2007 with the publication of the Green Paper setting out the Government's aim to "forge a new relationship between government and citizen, and begin the journey towards a new constitutional settlement—a settlement that entrusts Parliament and the people with more power".[2] The Green Paper set out proposals in four broad areas: limiting the powers of the executive; making the executive more accountable; re-invigorating our democracy; and Britain's future: the citizen and the state. There followed a number of consultation papers on individual policy areas, some still ongoing. Parliament has also been active in this area for some years, particularly the Commons Public Administration Select Committee's (PASC) work on a civil service bill and prerogative powers.

The Draft Bill

3._Building on Green Paper consultation responses, the Draft Bill and White Paper set out legislative proposals "to reform various aspects of our constitutional settlement.[3] They cover those areas of the Green Paper which the Government said it would "seek to surrender or limit powers which [the Government] considers should not, in a modern democracy, be exercised exclusively by the executive". The Draft Bill covers five areas:

  1. Demonstrations in the vicinity of Parliament
  2. The Attorney General and prosecutions
  3. Courts and tribunals
  4. Ratification of treaties
  5. The civil service.

Additionally, the White Paper deals with war powers, flying the Union flag and other issues.

Our approach to scrutiny of the Draft Bill

4._As noted above, our brief was to "consider and report on" the Draft Bill. Additionally, the White Paper sought our views on a number of issues related to the provisions in the Draft Bill, and raised a number of issues, most significantly the power of the executive to deploy armed forces into conflict. Given the limited amount of time available to us, we agreed at our first meeting on 6 May to limit our inquiry to the five policy areas in the Draft Bill and the issue of war powers. However, in our Call for Evidence, we also asked for views about how the Draft Bill fits into the wider context of constitutional reform.

5._Two other Parliamentary committees have undertaken scrutiny and published reports on aspects of the Draft Bill. The Commons Public Administration Select Committee (PASC) published its report on 22 May[4] covering the civil service provisions, war powers and treaties, as well as the wider review of the prerogative. The Commons Justice Committee published its report[5] on the Attorney General provisions on 24 June. We are grateful to both committees for the effort they took to complete their scrutiny exercises in order that we could draw on their conclusions and recommendations in considering our report.

6._Chapters 2 to 7 of this report examine in detail each of the six policy areas of our inquiry. We note where we agree with the Government's approach, and in other areas we offer recommendations on how the Draft Bill should be amended or strengthened. In Chapter 8 we give our views on the Draft Bill as a whole and the wider arena of constitutional change. Chapters 2 to 7 should therefore be read in the context of our conclusions in Chapter 8.


7._We welcome the decision to present this Draft Bill for pre-legislative scrutiny. This is the right thing to do for a bill of this nature. The Cabinet Office's Guide to Legislative Procedures accepts that "a committee will normally require at least 3-4 months to carry out its work" (para 18.1). We were, however, given just 10 sitting weeks to conduct our inquiry. The House of Lords Constitution Committee were "disappointed" with the amount of time allowed for pre-legislative scrutiny. (Ev71, para 4) Despite the limited time available, we have approached our task vigorously and have done our best to consider the evidence before us. Pre-legislative scrutiny is not intended to be merely a general examination of policy proposals, but should examine the detail of the Draft Bill, its merits, and whether it will work as intended. While we acknowledge the Government has undertaken extensive consultation on its proposals, this is no substitute for allowing sufficient time for Parliamentary scrutiny. It is in the interests of both the Executive and Parliament that the approach to constitutional reform is right. There is a risk that such a constricted timetable may not have allowed us, or for that matter the Government, to realise the full potential of the pre-legislative scrutiny process.

Evidence and other views received

8._We have sought a wide range of evidence to inform our report. We heard oral evidence from 56 witnesses, and received 80 submissions of written evidence. As well as the reports mentioned in paragraph 5 above, we have benefited from input from the House of Lords Constitution and Delegated Powers and Regulatory Reform Committees, the Commons Foreign Affairs Committee, and the Joint Committee on Human Rights. We are grateful to all those who have assisted us in our inquiry.


9._We would like to record our thanks to our Specialist Adviser, Professor Rodney Brazier, Professor of Constitutional Law at the University of Manchester, for his valuable input. We should also like to thank our Clerks and all the other staff of the two Houses for the unstinting and admirable support they have given us in enabling us to complete our inquiry and report in the limited time available to us.

1   Votes and Proceedings of the House of Commons, Wednesday 30 April 2008 and Wednesday 4 June 2008, House of Lords Minutes of Proceedings, Tuesday 6 May 2008 and Monday 2 June 2008.  Back

2   The Governance of Britain, July 2007, Cm 7170, foreword Back

3   The Governance of Britain-Constitutional Renewal, March 2008, Cm 7342-I and II, executive summary Back

4   Constitutional Renewal: Draft Bill and White Paper, Tenth Report 2007-08, HC 499 Back

5   Draft Constitutional Renewal Bill (provisions relating to the Attorney General), Fourth Report 2007-08, HC 698 Back

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Prepared 31 July 2008