Joint Committee on the Draft Constitutional Renewal Bill First Report


CHAPTER 8: CONSTITUTIONAL RENEWAL?

Introduction

348._In the preceding chapters, we examined the six policy areas covered by our inquiry. In this final Chapter, we return to the wider arena of constitutional reform, pulling together our conclusions from the previous chapters and looking at the Draft Bill and White Paper in the context of the ambitions set out in the Government's Green Paper.[183] As we said in paragraph 6, our conclusions in Chapters 2 to 7 should be read in the context of our overall conclusions below.

Governance of Britain—objectives

349._The Green Paper sought 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."[184] It set out four goals:

  1. "to invigorate our democracy, with people proud to participate in decision-making at every level;
  2. to clarify the role of government, both central and local;
  3. to rebalance power between Parliament and the Government, and give Parliament more ability to hold the government to account; and
  4. to work with the British people to achieve a stronger sense of what it means to be British, and to launch an inclusive debate on the future of the country's constitution."[185]

Reform of prerogative powers

350._One key element of the Green Paper was the promise to address prerogative powers—powers exercised by the executive in the name of the Monarch without the need to consult Parliament. The Green Paper said the exercise of prerogative powers was "no longer appropriate in a modern democracy".[186] It expressed the Government's belief that "in general the prerogative powers should be put onto a statutory basis and brought under stronger Parliamentary scrutiny and control."[187] The Government also signalled its intention to "begin a modern, systematic reform of the scope and nature of the prerogative powers" and to consider "whether all the executive prerogative powers should, in the long term, be codified or brought under statutory control" .[188]

351._Professor Adam Tomkins, John Millar Professor of Public Law, University of Glasgow, thought that the promises in the Green Paper were "genuinely exciting and quite astonishing in certain respects" in recognising that it was "inappropriately difficult for Parliament to hold the Government fully to account in the exercise of its prerogative powers". (Q 20) Professor Stuart Weir, Director of Democratic Audit, Human Rights Centre, University of Essex, told us it was "very important that that Green Paper did actually recognise how damaging the persistence of Royal Prerogative powers is". (Q 2) David H Smith told us there was "no place in a modern democracy for the use of prerogative powers". (Ev09, para 11)

352._However, several witnesses expressed scepticism about whether the promised reform of the prerogative was being followed through into the Draft Bill. Professor Tomkins regretted the lack of delivery of the statements in the Green Paper: "The only prerogative power, and it is only a small part of that particular prerogative power, that is going to be put on a statutory footing if the terms of this draft Bill are enacted into law is some of the power to manage the civil service. The war power will remain a prerogative power, albeit that its exercise will be subject to some Parliamentary oversight … and the effect … of the proposals with regard to the ratification of treaties really does not amount to very much more than legislating the existing Ponsonby Rule into statute." (Q 20) Democratic Audit described it as "a faltering step". (Ev04, para 4)

353._Noting the promise of a wider review of prerogative powers, Professor Tomkins told us "It is not clear why these particular prerogative powers [civil service, war powers and treaties] (and not others) have been selected for 'renewal'". (Ev01, para 8) Graham Allen MP called for all prerogative powers to be written down: "I have tried for many years to get a register of prerogative powers, but the key ones I think we know." (Q 694) In 2004, PASC published a draft bill calling for a statement of all prerogative powers on the grounds that "there can be no effective accountability without full information. Because Parliament does not know what Ministers are empowered to do until they have done it, Parliament cannot properly hold government to account".[189]

354._The prerogative power to manage the civil service will be transferred to statute in the Draft Bill and we welcome this reform. We note, however, that the Green Paper set out a number of prerogative powers that have not been addressed in the Draft Bill or White Paper, including the power to issue, refuse and revoke passports. The Government has now conducted a review across all Government departments to identify prerogative powers and intends to consider the results of this review before consulting in the Autumn. We commend the Government for undertaking the cross-departmental review of prerogative powers. Like the Public Administration Select Committee, we trust that the results of the review will be published as soon as possible. This is an important element of constitutional reform. Ideally, reform of the prerogative should be approached in a coherent manner, not in a piecemeal fashion.

JUSTICIABILITY

355._One element of putting prerogative powers in statute is the concern, expressed by some witnesses, that this would involve the courts by making actions taken under statute justiciable. We cover this issue in respect of war powers in Chapter 7. In its recent report, PASC concluded that "[a] perhaps unintended effect of placing prerogative power on the statute book without giving Parliament a role in how it is exercised is that it will become subject to scrutiny and decision, not by Parliament or the people, but by the courts."[190] Professor Vernon Bogdanor, Professor of Politics and Government, Brasenose College, University of Oxford, was concerned about the "great danger that we are asking judges to resolve problems which have already been resolved at a political level". (Q 5) Sebastian Payne, from Kent Law School, University of Kent, told us his "concern about a statute is the impact of drawing the courts into adjudicating on these issues". (Q 146)

356._Other witnesses were unconcerned about the possible role of the courts. Professor Weir told us that "the point about putting this on a statutory basis is that you do make it justiciable and you do therefore have some kind of control over process which we do not have at the moment." (Q 5) Professor Tomkins told us that "section one of the National Health Service Act is a good example: there shall be a duty on the Secretary of State to … provide for a National Health Service … That in itself is not a justiciable duty." (Q 23) Graham Allen told us "I think the more we can frame things in statute, the more we can codify things in a written constitution, the clearer the framework for debate will be ... So I say that is the strength of codification and statutory power rather than, necessarily, that you can run to the nearest judge to referee for you." (Q 691) The Lord Chancellor told us that PASC were "wrong" about the unintended effect of putting the prerogative in statute. (Q 743)

357._The difference of opinion between witnesses underlines an uncertainty about the potential involvement of the courts in statutory provisions. As part of its current review of prerogative powers, the Government must seek to bring some clarity to this debate and should recognise that any move towards statutory solutions would inevitably risk greater involvement of the courts.

Parliamentary scrutiny of the executive

358._One of the Green Paper's objectives was "to rebalance power between Parliament and the Government, and give Parliament more ability to hold the government to account". The Green Paper noted that "when the executive relies on the powers of the royal prerogative … it is difficult for Parliament to scrutinise and challenge government's actions."[191] One issue we explored was whether the Draft Bill and White Paper lived up to the promises in the Green Paper.

359._Some witnesses argued that the Draft Bill achieved this. Mark Ryan told us the Draft Bill did re-balance the relationship between executive and Parliament in favour of latter, but that the "shift could have been more pronounced". (Ev36, para 3) The Law Society of Scotland felt it achieved its objective "to a limited extent". (Ev30, para 3) Professor Robert Hazell told us the Draft Bill broadly achieved the aims of rebalancing power between executive and Parliament and gave Parliament more ability to hold the executive to account. (Q 64) Michael Wills MP, Minister of State, Ministry of Justice, told us "it is a very powerful statement that we believe as a government that this process of accretion of power to the executive ... actually has gone too far and Parliament needs to reassert its proper role in our constitutional arrangements. When you take all these measures together, that is the fundamental message that we are trying to make here" (Q 713)

360._However, others were less optimistic. Professor Tomkins argued that "[w]herever there is a clash between the interests of constitutional accountability to Parliament and those of retaining maximum government flexibility and control, the Government's current proposals come down uncompromisingly in favour of the latter." (Ev01, para 14) Democratic Audit told us that the Draft Bill "creates a series of accountability procedures and shifts in responsibility from the executive to Parliament. At the same time, the [G]overnment seeks to retain undue degree of discretion … and that shifts in responsibility are more symbolic than real". (Ev04, para 4) Several witnesses thought that there was too much "wriggle room" for the executive to evade accountability. (QQ 2, 3)

CLAUSE 43

361._One particular issue of Parliamentary accountability arises in clause 43 of the Draft Bill which allows the Minister by affirmative order to "make such provision as [he] consider[s] appropriate in consequence of this Act". Under clause 43(2) that order may "amend, repeal, or revoke any provision made by or under any Act".

362._Democratic Audit told us the purpose of clause 43 needed clarifying. They argued that even if the provision were limited to amending this Act, "any alterations should require full Parliamentary procedure". (Ev04, para 6) The Justice Committee recommended that we look at "the totality of the provisions of the Bill, considers whether any of them could be made more specific in order to reduce the area in which Clause 43(1) would operate."[192] The Lords Delegated Powers and Regulatory Reform Committee (DPRR) told us that the order-making power "should expressly be confined to the amendment of Acts passed before or in the same session as the bill." DPRR also recommended that "it should be made clear whether incidental or supplementary provision may be made under subsection (1) of clause 43." (Ev70, para 6)

363._We agree with the House of Lords Delegated Powers and Regulatory Reform Committee that the power in clause 43 (to make consequential provision) should be limited to the amendment of Acts passed before or in the same session as the Bill.

Genuine reform?

364._We return to some of the policy areas covered in Chapters 2 to 6 and ask whether they collectively match up to the proposals for reform set out in the Green Paper. We then look more widely at whether the Draft Bill represents significant constitutional reform.

CIVIL SERVICE

365._In Chapter 6, we welcomed the Government's intention to put the civil service on a statutory footing. As noted above, clause 27 is the only provision in the Draft Bill that transfers a prerogative power to statute. Professor Weir told us that this was "a very important and very genuine step forward". (Q 2) While he was also in favour of the statutory provisions, Professor Bogdanor told us it would be "unwise to exaggerate what can be achieved by that". (Q 3) Lord Wilson said "I am on record, when I was Secretary of the Cabinet and Head of the Civil Service, as being in strong support of the case for a Bill ... It is also worth remembering that Orders in Council are very fragile, they are a fragile basis on which to work" and that we should "do what we can to make sure that the basic values, principles and rules governing its operation are part of the law." (Q 414)

WAR POWERS AND TREATIES

366._The Green Paper states that "In a modern 21st century Parliamentary democracy, the Government considers that basing these powers [to send troops into armed conflict and make treaties] on the prerogative is out of date. It will therefore seek to limit its own power by placing the most important of these prerogative powers onto a more formal footing, conferring power on Parliament to determine how they are exercised".[193] Elizabeth Wilmshurst told us that "what is being done is not significant and doesn't attack the main problem" (Q 19). Professor Adam Tomkins argued that it was clear that with regard to both powers the intention was clearly to retain powers firmly based in the prerogative "albeit … subject to moderately enhanced Parliamentary oversight." (Ev01, para 4) We asked the Lord Chancellor whether the royal prerogative was alive and well in the matter of war powers. He said "I do not think so". (Q 737) He explained that, in respect of treaties, it was not simply legislation embodying existing practice but there was a "fundamental, substantive difference ... if Parliament votes against the measure, it cannot be ratified". (Q 750)

COURTS AND TRIBUNALS

367._In Chapter 4 we questioned the need for legislation on judicial appointments so soon after the 2005 Constitutional Reform Act. Lord Falconer asked whether it was appropriate for provisions relating to the administration of medical checks to be dealt with in a Constitutional Renewal Bill. (Q 170) The Lord Chancellor told us "I do not suggest [the provisions on judicial appointments] are earth shattering. Much more significant changes on judicial appointments, the whole relationship between the executive and the judiciary, were made in [the 2005 Constitutional Reform] Act". (Q 756) He went on to say "I am not proposing to pull up the basic architecture that is in here; not at all. What I am proposing to make are some rather limited changes to streamline the process". (Q 757)

CONSTITUTIONAL RENEWAL: RHETORIC VERSUS DELIVERY

368._The Green Paper stated that the range of reforms amounted to "a significant step towards a renewed constitutional settlement."[194] We heard from a number of witnesses who were concerned that the ambitions of the Green Paper had not been carried through into the Draft Bill. Professor Tomkins told us "even within the areas of the Green Paper that do find some expression in the Draft Bill, there appears to be considerable slimming down of ambition" and he questioned why provisions in the Draft Bill "fall so far behind the promise of the Government's own suggested reforms" (Ev01, para 3, Q 20) Lord Falconer told us that "looking at the Bill as a whole", there was, "subject to one point, namely the civil service ... next to nothing of significance in this [Draft] Bill". (Q 170) Graham Allen MP argued that the Draft Bill "does not fundamentally alter the UK constitutional settlement. At best, [the provisions] are a first step towards such a transformation, and a faltering one at that." He went on to say "[w]ere it clear that the collection of reforms were an early, determined step towards fuller settlement, they would not appear such a hotch-potch." (Ev17, paras 2, 6)

369._Peter Riddell was more ambivalent. He told us that the reforms in the Draft Bill were significant in that two fundamental policies (on war powers and the civil service) had been rejected two years ago but were now accepted, but overall the proposals were "small stuff". (Q 3) Professor Hazell told us the Draft Bill contained a "series of small but desirable reforms … none of great significance. They are things that can be legislated for now" (Ev07, summary, para 1.2)

THE DRAFT BILL

370._The Lord Chancellor told us that the Draft Bill represented a "significant but by no means exclusive part" of the reforms launched by the Green Paper. He said "I have never suggested that any part of this process is, as it were, a final event ... they are certainly a number of separate and discrete changes ... Is the whole greater than the sum of the parts? In my judgment yes, because they do represent a significant clarification and shift in power from the executive to Parliament". (Q 709) Michael Wills MP told us that "this is not a blueprint; it is a roadmap. This is part of the process, but it is beginning anew." (Q 716)

371._Peter Riddell told us that what was missing were "the bigger picture things". (Q 11) Graham Allen MP asked "[w]hat is missing? I think some very big things are missing: a pathway towards the possibility of a written constitution for the United Kingdom; a possibility of genuinely independent local government; … the whole question of … over-centralisation; ... and the wider view on prerogative powers ... I think it would be fair to say that perhaps our expectations either were raised too high or that those expectations have not yet been met." (Q 689) Professor Bogdanor told us constitutional reform in general was "a moving picture". His criticism of the priorities in the Draft Bill were that "the whole phase of constitutional reform in 1997 has led to a very valuable redistribution of power but it has been a redistribution of power between various elites … it seems to me personally that the main priority for the next phase of constitutional reform should be to move in [the] direction [of devolution] rather than further redistribution of power between political and judicial elites". (Q 10)

A coherent Draft Bill?

372._We heard evidence on whether the six issues in the Draft Bill and White Paper represented a coherent package of measures designed to meet the ambitions of the Green Paper. Professor Hazell described the Draft Bill as "a set of rather disparate items". (Q 63) Professor Weir agreed, but said we should "take what we can get because the whole move towards constitutional reform in this country is beginning to founder generally". (Q 2) The Lord Chancellor did not dispute that there was little to connect demonstrations outside Parliament to a civil service Act. (Q 731)

373._Most witnesses who expressed an opinion told us they would prefer the civil service provisions to be in a separate Bill. The Lords Constitution Committee said that "[t]he inclusion of civil service reform as Part 5 of the draft bill is of particular concern to us." While they were pleased that the Government had "stopped their prevarication over when to bring forward legislation" they were "unconvinced that these important reforms can receive the attention and scrutiny they require, either inside or outside Parliament, if they continue to be part of a larger bill". (Ev71, para 6) Lord Wilson supported a separate Bill but warned that "it is more important to get it on the statute book than to worry about … whether it is on its own or part of another Bill … It has taken 150 years to get here and I would not want to spoil the ship for a ha'p'orth of tar." (Q 416) Professor Hennessy said that although he "regret[ted] it has got to be in this Act, I am relieved that it is there". (Q 415) However, the Lord Chancellor told us that "of course you could have a separate Civil Service Bill if you wanted but if you did that you would end up putting off these things for further years and years". (Q 714)

374._The Lords Constitution Committee told us that the Draft Bill contained "five completely separate areas of proposed reform … While we accept that a single bill may be the most convenient vehicle for implementing those aspects of the reform programme that require primary legislation, we are concerned that there is a risk that in this conglomerate of topics, the separate parts—each important in its own right—may be subject to less effective scrutiny than might otherwise be the case." (Ev71, para 5)

375._We put this concern about conglomerating many topics into one Draft Bill to the Lord Chancellor. He told us that "in practice and in my experience it is much more difficult to get Parliamentary time and priority for a series of Bills than it is for one Bill ... these are parts of a whole and they arose from not separate consideration in different departments but as a result of very concentrated effort about how we did shift power from the executive to Parliament, it is worth putting them in a single Bill." (Q 730)

376._We acknowledge that the Draft Bill contains a number of provisions aimed at improving Parliamentary scrutiny of the executive. Because of the disparate nature of the proposals in the Draft Bill, it is difficult to discern the principles underpinning it. We recognise that the Bill is contained in the Government's Draft Legislative Programme for the next session and that there are business management priorities in acquiring Parliamentary time for a bill. This should not, however, be the dominant consideration, particularly if there is a risk that effective Parliamentary scrutiny will be compromised. It is clear that further work is needed before the Bill will be ready for introduction in the next session. We call on the Government to take note of our conclusions and to reconsider the form in which the Bill should be presented.

377._Ideally, we would like to see the civil service provisions of the Draft Bill presented to Parliament in a separate bill, to become a Civil Service Act. They deserve the level of Parliamentary scrutiny that a separate bill would provide. We agree, however, that it is more important that the civil service clauses become law than that they do so in a separate Act.

378._We acknowledge that there are some valuable elements of the clauses on judicial appointments, but there is nothing that cannot wait until the work of the Judicial Appointments Commission beds in under the new arrangements. We concluded in paragraph 141 that it was too soon to propose significant reform of judicial appointments, only two years after the changes in the Constitutional Reform Act were introduced. We therefore recommend that the Draft Bill be amended to remove the clauses on judicial appointments. The Government should review this area in due course.

379._Balancing the right to protest with the effective functioning of Parliament is an important issue and further work is needed to develop a new framework to manage protests around Parliament. We have recommended in Chapter 2 that before sections 132 to 138 of the Serious Organised Crime and Police Act 2005 (SOCPA) are repealed, further work needs to be done. We are not persuaded that these provisions should form part of a bill dealing with constitutional issues.

380._We recognise that the functions of the Attorney General are constitutional and so are relevant to the Draft Bill. If, in light of our recommendations in Chapter 3, there is any requirement for legislation, they could be included in this Bill.

381._We recognise that the Draft Bill is a first step in a wider programme of reforms to the constitution planned in the Green Paper. There are many significant reforms outside the scope of this Draft Bill. It would be regrettable if the passing of this Bill prevented further progress in other fundamental areas of reform, and we look forward to the introduction of further reforms as set out in the Government's Green Paper.

Long title

382._One way of ensuring the link between the Draft Bill and wider reform is not broken is to consider the approach to the long title of the Bill as part of the scope of the legislation. The long title is specific about the contents of the Draft Bill and reads:

"A bill to repeal sections 132 to 138 of the Serious Organised Crime and Police Act 2005; to make provision relating to the Attorney General and prosecutions; to make provisions relating to judges and similar office-holders; to make provision relating to the ratification of treaties; to make provision relating to the civil service."

383._We recognise that the scope of bills and long titles are matters on which the Parliamentary authorities advise and we do not seek to pre-empt that advice. However, we are concerned that, as drafted, the long title may limit the scope of the Bill when it is introduced to Parliament. For example, we question whether the current long title would allow amendments to include new provisions in response to the repeal of SOCPA.

384._The Lord Chancellor told us that he would look at whether to amend the long title and acknowledged the benefits of taking a broader approach. He told us he had "no intention that the long title should constrain whether there could be a debate about war powers, for example." (Q 779)

385._The long title as it stands is insufficiently broad to cover all of the issues we have addressed in our inquiry. We recommend that the Lord Chancellor consider amending the long title to include the objectives of the Green Paper set out in paragraph 349 above. Changing the approach to the long title would enable Parliament to consider wider issues of constitutional reform during the passage of the Bill, without obliging the Government to introduce provisions to do so.

Short title: constitutional renewal?

386._In light of the recommendations we have made above, our final paragraphs deal with the short title of the Bill—"Constitutional Renewal".

387._Several witnesses were concerned at describing the provisions in the Draft Bill as "Constitutional Renewal". Professor Bogdanor told us that "[i]t would be an exaggeration to say that if they were passed into law this would amount to constitutional renewal". (Q 1) Professor Tomkins said that "to call this Bill a Constitutional Renewal Bill is an exaggeration ... of both the terms 'constitutional' and 'renewal'. (Q 20) Graham Allen MP agreed and said that there might be a case to be brought under the Trade Descriptions Act "if we are talking about constitutional renewal in the very narrow confines that it is laid out in the White Paper." (Q 689) The Better Government Initiative argued that "the Bill does not go far enough in strengthening the relationship between Parliament, the executive and the people to warrant the title "constitutional renewal"." (Ev19, para 2) Lord Falconer described it as "a sort of "Constitutional Retreat Bill"! To call it a Constitutional Renewal Bill in my view is a little bit over-claiming". (Q 216) Several witnesses suggested that a more appropriate descriptor would be "miscellaneous provisions". (Ev30, issue 2, Ev07, para 3.1)

388._Michael Wills told us that the use of 'renewal' rather than 'reform' was signalling a "step-change … a recalibration of our constitution—that is fundamental—between the executive and Parliament ... we need to draw a line and recalibrate". (Q 716) However, the Lord Chancellor told us he was "not going to die in the ditch for the use of 'renewal' over 'reform'". He said that 'renewal' was chosen so as "not to cause confusion with the 2005 [Constitutional Reform] Act, that was all". (Q 715)

389._We call on the Government to reflect further on the appropriate title for the Bill before it is introduced. As with our approach to the long title, our concern about the short title stems from our regret that many of the ideas set out in the Green Paper have not been brought forward into the Draft Bill. We commend the Government for taking these first steps towards the stated objective of making Government more accountable to Parliament, but would encourage the Government to use this opportunity to make progress beyond these first steps.


183   The Governance of Britain, July 2007, Cm 7170 Back

184   ibid., Foreword Back

185   ibid., para 10 Back

186   ibid., para 14 Back

187   ibid., para 24 Back

188   ibid., paras 49-50 Back

189   Taming the Prerogative: Strengthening Ministerial Accountability to Parliament, Fourth Report of Session 2003-04, HC 422, para 59 Back

190   Constitutional Renewal: Draft Bill and White Paper, Tenth Report, Session 2007-08, HC 499, para 94 Back

191   The Governance of Britain, op cit., para 15 Back

192   Draft Constitutional Renewal Bill (provisions relating to the Attorney General), Justice Committee, Fourth Report, Session 2007-08, paragraph 99 Back

193   The Governance of Britain, op cit., para 17 Back

194   The Governance of Britain, op cit., para 15 Back


 
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