Joint Committee on the Draft Constitutional Renewal Bill First Report

CHAPTER 9: SUMMARY OF RECOMMENDATIONS

Chapter 1: Introduction

390._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 and 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. (paragraph 7)

Chapter 2: Protests

391._The restrictions on protest around Parliament that were introduced by sections 132 to 138 of the Serious Organised Crime and Police Act 2005 have met widespread opposition. We agree that these provisions should be repealed. The Government has sought the views of Parliament about whether replacement provisions of any kind are necessary. (paragraph 23)

392._We strongly endorse the 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. (paragraph 24)

393._We acknowledge the need for Parliament to be clear about the level of access that is required, as well as the extent to which other considerations must be taken into account, including disruption from noise, and security. (paragraph 25)

394._If the redevelopment of Parliament Square proceeds, it could result in a major increase in the use of the site by the public and a possible extension of the Greater London Authority's byelaw that governs its use. We support improved pedestrian access to Parliament Square. However, we are concerned that the Government is viewing the potential redevelopment and the possible extension of the byelaw as an issue for the future rather than as a part of the current review. This is problematic since they both affect the right to protest in Parliament Square and they should be looked at together. (paragraph 26)

395._As a general rule 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. (paragraph 35)

396._In light of the conflicting evidence that 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. However, we are not persuaded that it requires an outright ban on protest along the strip of pavement and roadway outside all the main entrances of Parliament. (paragraph 36)

397._The legal framework regulating access should apply to sitting days and non-sitting days equally, given the continuous use of Parliament and the need to create certainty for all concerned. At the same time we recognise that protests are less likely to cause disruption to the proper functioning of Parliament at weekends or during recesses, and this should be taken into account in the practical application of any resulting legislation. The Sessional Orders do nothing to enhance police powers and we recommend that the House of Lords Stoppages Orders should be discontinued and that the House of Commons Sessional Orders should not be reintroduced. (paragraph 37)

398._We accept that all demonstrations have the potential to create noise and that the reasonable use of loudspeakers should be allowed in the area around Parliament. Depending, however, upon the time of day and the level of background noise from traffic, there are exceptional occasions during which the duration and volume of noise from loudspeakers causes serious disruption to large numbers of Members, staff and others within Parliament. There is a need either to develop or make better use of existing powers to ensure that in those exceptional cases the police or other authorities can control noise, including the use of loudspeakers by both groups and individuals. While a range of approaches have been suggested to us, we welcome the Home Office Minister's commitment to work with the Parliamentary authorities and others to develop a "coherent framework". As a minimum, there should be a statutory power to move an individual, or to confiscate sound equipment. (paragraph 48)

399._We note that opinion is divided in relation to whether permanent and overnight protests should be allowed to continue outside the Houses of Parliament, although there appears to be a majority against within Parliament. We see merit in distinguishing between permanent protests on the one hand, and the more traditional one day marches and demonstrations on the other. We call for a careful and comprehensive review of permanent protests, especially in light of the possible redevelopment of Parliament Square. (paragraph 60)

400._We accept the Metropolitan Police Service's evidence that the police should continue to have a power to impose conditions on demonstrations in Parliament Square to prevent a security risk in the future, including in relation to lone protestors. (paragraph 63)

401._We do not accept that there is a need for the police to be able to impose conditions over and above those currently available under the Public Order Act 1986 to prevent a public safety risk in the future. (paragraph 65)

402._We support the removal of the legal requirement to obtain prior authorisation from the Metropolitan Police Commissioner before protesting in the vicinity of Parliament. We note the clear practical benefits of giving prior notification to the police and we encourage the practice of doing so. We do not, however, believe that there should be a legal requirement to do so. (paragraph 72)

403._We note the differences of opinion about the adequacy of police powers of arrest. We welcome the commitment by the Home Office Minister to remove any "confusion" as part of the review of the Police and Criminal Evidence Act 1984 that is being carried out by the Home Office. Had we been given further time for our inquiry, we might have obtained further evidence that would have enabled us to provide a more useful assessment of the adequacy of existing powers. (paragraph 76)

Chapter 3: Attorney General and prosecutions

404._We have carefully considered the evidence we have received and the recommendation of the House of Commons Justice Committee. We recognise that there are different and strongly held views on this issue. On balance, however, we are not persuaded of the case for separating the Attorney General's legal and political functions. We therefore support the current arrangement which combines these functions, and support the retention of the Attorney's present status as a Government Minister. (paragraph 84)

405._The Government should be accountable to Parliament for its actions. For Parliament properly to discharge its accountability function, it must be sufficiently informed of the basis—including the legal basis—for the actions of Government. (paragraph 88)

406._Whilst we accept that attendance at Cabinet is ultimately a matter for the Prime Minister, we endorse the Constitutional Affairs Committee's recommendation that "the old convention with respect to the Attorney General's attendance at Cabinet should be re-established."[195] We recommend that the Attorney should only attend Cabinet when the Prime Minister, on specific occasions, requires her legal advice, not routinely on the assumption that it might be required; or when Cabinet is considering matters on which the Attorney has Ministerial responsibility. (paragraph 91)

407._We recommend that, in order to deliver effective accountability, the Attorney General should continue to sit in one of the two Houses of Parliament. Which House should be determined by the Prime Minister's choice as to who is the most qualified candidate. (paragraph 96)

408._We welcome the proposal for an annual report on the exercise of the Attorney's functions which will enhance Parliamentary scrutiny and public awareness of the work and functions of the Attorney General. (paragraph 99)

409._We agree with the House of Commons Justice Committee that the current arrangements for select committee scrutiny of the Attorney General and her office are sufficient and work well. There is no need for an additional committee. (paragraph 101)

410._We acknowledge that the Attorney General plays a valuable role in championing the prosecutorial authorities in criminal justice policy formulation. We therefore agree with the Government that the Attorney General's functions in relation to criminal justice policy should be retained. (paragraph 104)

411._We sympathise with the Government's concern to ensure operational independence for the prosecutorial authorities, but we are not convinced that removing the Attorney General's power to give a prosecution direction is an appropriate route for achieving this. We were impressed by the strength of the evidence we received that the "nuclear option" of being able to stop a prosecution must be retained, and that the most appropriate person to exercise it is the Attorney General, as she is directly accountable for its exercise to Parliament. Removing this power would mean that the Attorney would have responsibility without power. We recommend that the Attorney General should retain the power to give a direction in relation to any individual case, including cases relating to national security. This should continue to be on a non-statutory basis. We see merit in the Attorney General reporting to Parliament if she gives a direction in relation to an individual case and we recommend that the Government establishes a procedure for the Attorney to do so. [f, however, the Government removes the Attorney's power to give a direction in an individual case, we agree that the Attorney should retain the power to intervene for the purpose of safeguarding national security, subject to the requirement to report to Parliament. (paragraph 114)

412._We support the Government's proposal that the majority of requirements for the Attorney's consent to individual prosecutions should be transferred or abolished, with a small number retained by the Attorney. We do, however, recommend that further work should be undertaken to determine the category into which each consent requirement falls, and to ensure there is an effective accountability mechanism if and when powers are transferred. (paragraph 118)

413._In line with our recommendation in paragraph 114 that the Attorney should retain a power to direct, we recommend that the power to halt a trial on indictment (nolle prosequi) should be retained. We invite the Government to investigate how greater Parliamentary accountability for its use might be provided. (paragraph 121)

414._We agree that the Attorney General should retain her superintendence function in relation to the Director of Public Prosecutions, the Director of the Serious Fraud Office and the Director of Revenue and Customs Prosecutions. (paragraph 124)

415._We welcome the proposal for a protocol setting out how the Attorney General and the prosecutorial directors should exercise their functions in relation to each other. However, we recommend that the proposed protocol should be published in draft and subjected to Parliamentary scrutiny before the Bill is introduced. We also recommend that any future revisions of the protocol be the subject of scrutiny by the House of Commons Justice Committee. (paragraph 127)

416._We welcome the proposed new clauses relating to the tenure of office of the Directors, but recommend that the Bill be amended to make clear that it will be possible for the Directors' terms of office to be renewed. (paragraph 130)

417._We agree with the Government that the oath should be reformed, but like the Government, we do not believe that it is necessary to put the oath on a statutory basis. (paragraph 133)

Chapter 4: Courts and tribunals

418._The Constitutional Reform Act 2005 made fundamental changes to the judicial appointments process by introducing a "carefully calibrated" balance between the roles of the Executive, the judiciary and the newly-created Judicial Appointments Commission. We accept the need to improve the efficiency and performance of the process in light of problems experienced to date, but it is far too soon to propose significant reform, only two years after the changes were introduced. The delicate relationship between judicial independence and democratic accountability for appointments should not be reassessed until the new system is fully established and a comprehensive body of evidence is available to assess its operation. (paragraph 141)

419._While there is no need for urgent reform, we accept the proposal to remove the Prime Minister's residual role in relation to appointments to the Supreme Court. The additional check that the Prime Minister used to provide on the Lord Chancellor's nomination is no longer necessary in light of the statutory selection processes introduced by the Constitutional Reform Act 2005. (paragraph 145)

420._We oppose the proposal to remove the Lord Chancellor's power to reject or require reconsideration of the Judicial Appointments Commission's selected candidate in relation to appointments below the High Court. The new system has not been in operation long enough to justify such a significant and controversial departure from the balance achieved by the 2005 reforms. We are also concerned about treating junior level appointments in a different way from senior level appointments, particularly given the importance of decisions made by the junior judiciary to the public. (paragraph 153)

421._We do not accept that it is appropriate to give the Lord Chancellor a power to set targets or to issue directions to the Judicial Appointments Commission. Such a power would have the potential seriously to undermine the independence of the appointments process, which was a primary reason for the 2005 reforms. (paragraph 159)

422._We support the role of select committees in holding the judicial appointments process to account. Whilst we note the Government's proposal for the House of Commons Justice Committee and the House of Lords Constitution Committee to hold an annual joint meeting, we leave it to those individual committees to determine whether it might improve scrutiny overall. Either way, we also note that increased Parliamentary scrutiny will not require legislation in order to be implemented. (paragraph 161)

423._We welcome the Government's undertaking that future appointments to the Chair of the Judicial Appointments Commission will be subject to pre-appointment scrutiny by the appropriate Parliamentary committee. (paragraph 163)

424._We note that giving Parliament a role in the appointment of individual judges remains controversial and is widely opposed, particularly the suggestion of "confirmation hearings". Any future re-assessment of Parliament's role should await a comprehensive review of the appointments process, as recommended in paragraph 201. (paragraph 165)

425._We welcome the proposal to introduce key principles but are not convinced that they should be statutory. We encourage the Lord Chancellor to keep their impact under review in case the Judicial Appointments Commission is proved right in its argument that they are too broad to be meaningful or could lead to an unacceptable increase in speculative litigation. (paragraph 168)

426._We oppose the proposal to establish a statutory Judicial Appointments Commission panel. The Judicial Appointments Commission has already formed working groups which benefit from being more flexible and potentially less expensive. (paragraph 171)

427._We agree that the Lord Chancellor should be given the power to determine non-statutory eligibility criteria, although we strongly encourage the Lord Chancellor to seek the concurrence of the Judicial Appointments Commission and the Lord Chief Justice or his delegate in respect of each determination. (paragraph 175)

428._We welcome the transfer of responsibility for medical checks from the Judicial Appointments Commission to the Lord Chancellor, although we question whether this proposal would actually require legislation to be implemented. (paragraph 178)

429._We welcome the progress that has been made towards improving the forecasting of judicial vacancies and we encourage the Lord Chancellor to resolve the remaining procedural inefficiencies, as far as possible without introducing further legislation. (paragraph 180)

430._We oppose the proposal to give the Lord Chancellor a broad delegated power to remove posts from the statutory list of appointments requiring a selection by the Judicial Appointments Commission. We recommend that the proposal be amended to meet the more limited need that has been identified by the Lord Chief Justice, namely the flexible deployment of existing judges to the same level of appointment subject to the approval of the Lord Chancellor, the Lord Chief Justice and the Senior President of the Tribunal as appropriate. (paragraph 184)

431._In broad terms, we welcome the proposal to allow the Lord Chief Justice to deploy, authorise, nominate or extend the service of judicial office holders without being required to consult or gain the concurrence of the Lord Chancellor. However, we recommend that the process used by the Lord Chief Justice to make "significant" authorisations and nominations be approved by the Judicial Appointments Commission in order to balance the need for efficiency against the importance of maintaining a transparent process. The Lord Chancellor and the Lord Chief Justice should work with the Judicial Appointments Commission and others to identify those kinds of authorisations and nominations that should be subject to this procedure. (paragraph 187)

432._We consider that it is too soon to undertake a general review of the size and composition of, and reappointment process applying to, the Judicial Appointments Commission. There does not appear to be any urgent need for change. (paragraph 190)

433._We support the proposal to bring section 139 of the Constitutional Reform Act 2005 into line with other legislation permitting the disclosure of information for the purposes of investigating a crime. (paragraph 192)

434._We are disappointed by the lack of measurable progress towards increasing diversity at all levels of the judiciary, although we acknowledge the short period of time during which the Judicial Appointments Commission has been operating. We encourage the Judicial Appointments Commission and others, including the Lord Chancellor and the Lord Chief Justice, to continue exploring the best ways of addressing this important issue. (paragraph 197)

435._We welcome the proposal to give statutory salary protection to tribunal judges. (paragraph 199)

436._Some of the proposals [for other statutory changes to be made to the appointments process that are not included in the Draft Bill] received support during our inquiry and we hope that the Government will keep them under review. (paragraph 200)

437._Our overall view is that most of the proposals to reform the judicial appointments process are premature. Once the Judicial Appointments Commission is fully established we believe it would benefit from a comprehensive review by the Government and either or both of the House of Commons Justice Committee and the House of Lords Constitution Committee. This review should precede any legislative reform of the appointments process. (paragraph 201)

Chapter 5: Ratification of treaties

438._We agree that the Government's proposal to place the Ponsonby Rule on a statutory footing is a "positive and beneficial" reform. (paragraph 208)

439._We conclude that, whilst a 21 day sitting period will be sufficient time for Parliamentary scrutiny of treaties in the vast majority of cases, there is a need for a mechanism to be set out in statute to increase this period in exceptional circumstances. The new Joint Committee on Treaties, which we recommend in paragraph 238, would have an important role to play in such circumstances. (paragraph 212)

440._We agree with the Government's proposals in terms of the relative effects of a negative vote in the Commons and the Lords, as set out in clause 21 of the Draft Bill, at least while the Lords retains its current composition. We note concerns in evidence about the confusing drafting of this clause, and therefore recommend that the Government clarify and simplify the drafting of this part of the Bill. (paragraph 217)

441._We agree with the Government that the Secretary of State should be able to re-submit for Parliamentary approval a treaty which either House has resolved should not be ratified. (paragraph 220)

442._We agree that, in exceptional circumstances, there should be a means by which the Government can ratify a treaty without it being subject to the Parliamentary approval process. However, it would require full justification. If the power under clause 22 is invoked, the requirement for a statement laid before Parliament under clause 22(3)(b) must include a requirement for detailed information on the nature of the exceptional circumstances. The Government should also indicate in its response to our report the kind of circumstances—such as extreme urgency—in which it would consider ratification under clause 22. Subject to these considerations, we are content with the proposed drafting of clause 22. (paragraph 226)

443._We agree that the present exceptions to the Ponsonby Rule should be outlined in statute, as proposed in clause 23. We further recommend that the Government continue to investigate whether any other categories of treaties should be excluded in a similar manner, with a view to publishing a definitive list by the time of the Bill's introduction. (paragraph 228)

444._Whilst we accept the Government's proposed definitions of treaties covered by the Ponsonby Rule and the proposed statutory process, we also recognise the case for enhanced scrutiny of other treaty-like documents, such as memoranda of understanding. We therefore recommend that Government and Parliament investigate ways of enhancing the scrutiny of such documents. The Joint Committee on Treaties, which we propose in paragraph 238, would have an important role to play in this process. (paragraph 232)

445._We have noted the widespread view in evidence that Parliament and its committees do not make effective use of existing scrutiny mechanisms. This may simply be due to the many competing demands on committees' time and resources. It would be disappointing if for this reason the Government's proposals to give Parliament a statutory role in the approval of treaties had no effect in practice. We therefore recommend that a new Joint Committee on Treaties be established. This Committee should be large enough to include a range of expertise from both Houses, but small enough to operate efficiently and effectively. The tasks of the Joint Committee could include sifting treaties to establish their significance; assessing whether an extension to the 21 day sitting period is required in respect of a particular treaty (as recommended in paragraph 212); and scrutinising (or considering new ways of scrutinising) other treaty-like documents (as recommended in paragraph 232). We envisage this Committee would support existing select committees in the scrutiny of treaties and would work to ensure the current gaps in scrutiny are filled. (paragraph 238)

Chapter 6: The civil service

446._We welcome the Government's intention to put the civil service on a statutory footing. (paragraph 240)

447._Whilst we support the Government's approach to the definition of the civil service in the Draft Bill, we note concerns about the ambiguity of who is and who is not a civil servant. Before the Bill is introduced, the Government should provide greater clarity about who is a civil servant and address the unions' concerns about employment status. (paragraph 244)

448._We agree with the Government's approach to treating GCHQ in the same way as the other Security and Intelligence Agencies by excluding them from the definition of the civil service in the Draft Bill. But in taking this approach, the Government must ensure that GCHQ staff are given the same right of access to an independent complaints mechanism as the other Agencies. We also seek an assurance from the Government that, as a general rule, staff at GCHQ will be recruited on merit. (paragraph 249)

449._We share the concern expressed by the Public Administration Select Committee and many of our witnesses that the current provisions of the Draft Bill do not do enough to guarantee the financial and operational independence of the Civil Service Commission. The Government should look again at what amendments need to be made to safeguard the Commission's independence from Government. In particular, we recommend that the Draft Bill be amended to require the Commissioners to report annually to Parliament on the adequacy of their funding. (paragraph 254)

450._We agree with the Government that a five-year term is appropriate for the First Civil Service Commissioner. (paragraph 256)

451._We agree that the Minister for the Civil Service should be obliged to consult the First Ministers of Scotland and Wales and the leaders of the main opposition parties about the appointment of the First Civil Service Commissioner, but should not be obliged to seek their agreement. (paragraph 257)

452._We recommend two amendments to the Draft Bill in respect of the Commissioners. First, Schedule 4 should require the Commissioners to be appointed on merit on the basis of fair and open competition. Second, paragraph 6 of Schedule 4 (Compensation for loss of office of First Commissioner) should be extended to allow compensation for loss of office for all Commissioners. (paragraph 258)

453._We agree with the Public Administration Select Committee and the Civil Service Commissioners that the Draft Bill should be amended to give the Commissioners the right to carry out investigations into the operation of, or compliance with, the Civil Service Codes without a specific complaint having been made and without the consent of the Minister for the Civil Service being required. In order to avoid undue pressure on resources, or any risk of politicising the role of the Commissioners, the drafting of this provision should make clear that the use of this power should be limited to instances where the Commissioners consider there is sufficient evidence to warrant an investigation. (paragraph 263)

454._In principle, we support the approach in clause 27 of the Draft Bill that the Prime Minister should be responsible for the civil service, including ultimately for appointment and dismissal. However, while Ministers can legitimately be consulted about particular moves within the civil service, Ministers should not be involved in appointment or dismissal of individual civil servants without the express approval of the Prime Minister. We invite the Lord Chancellor to follow up on his offer to look again at the drafting of clause 27(3) to reflect this. (paragraph 267)

455._Requirements on Ministers to give fair consideration and due weight to impartial advice from civil servants and not to impede civil servants in their compliance with the Civil Service Code are issues best dealt with in the Ministerial Code. (paragraph 269)

456._There should be a statutory requirement upon the Government to lay the Ministerial Code before Parliament but it should not be subject to any formal Parliamentary approval mechanism. (paragraph 270)

457._It is not clear whether the text of clause 27 as drafted is sufficient to remove all prerogative powers surrounding the statutory power to manage the civil service. This should be clarified before the Bill is introduced. (paragraph 271)

458._We are not persuaded of the case for formal Parliamentary approval of the civil service and diplomatic service codes. The most appropriate form of Parliamentary scrutiny of the codes is that undertaken by select committees, particularly the Public Administration Select Committee; and we welcome their intention to continue to examine closely any substantive revisions to the codes. (paragraph 274)

459._We have considered the views of the Public Administration Select Committee and witnesses, but we are not convinced that the Draft Bill requires amendment to clarify the requirement for civil servants to be impartial. The Civil Service Code makes expressly clear that impartiality includes political impartiality. (paragraph 278)

460._We are encouraged by the Lord Chancellor's response about amending the Draft Bill to provide a wider duty on civil servants to Parliament alongside the duty to serve the government of the day. We recommend that the Government find a suitable form of words to achieve this. (paragraph 281)

461._The Draft Bill should be amended to limit the exception in clause 34(3)(a) to members of the Royal Household (if indeed they are considered to fall within the definition of the civil service). Appointments to any other posts currently included in this exception should be on merit. (paragraph 283)

462._We recommend that the exception in clause 34(3)(b) for senior diplomatic appointments should be limited to exceptional circumstances and should require the direct approval of the Prime Minister. If the Prime Minister wishes to make political appointments to senior diplomatic posts in exceptional cases, he should be able to do so, but he must be politically accountable for any such decisions. (paragraph 286)

463._We welcome the Commissioners' review of their approach to exceptions under the Recruitment Principles and we are content that exceptions under clause 34(3)(d) could only be made if the Commissioners agree they meet the needs of the civil service. (paragraph 288)

464._We share the widespread welcome from our witnesses for the role special advisers play in Government. Our objective has been to ensure that there is a clear framework within which civil servants and special advisers can operate effectively. In this respect, we agree with the First Commissioner that "good fences make good neighbours". (paragraph 289)

465._We agree with the continued treatment of special advisers as temporary civil servants on the grounds that it is preferable for them to work within the same framework as other civil servants. For this reason, we reject the proposal that they be paid from "Short money", which would have the effect of removing them from the ambit of the Civil Service Code. We note the intention set out in the Green Paper to clarify the role of special advisers. On balance, we do not support calls for restrictions on advisers' functions to be put on the face of the Draft Bill. However, we recommend that paragraph 7 of the Code of Conduct for Special Advisers should be amended to make it explicit that special advisers may not authorise expenditure; recruit, manage or direct civil servants; or exercise statutory powers. We recommend that a procedure should be included in the appropriate Code for limiting the numbers of special advisers, preferably not by establishing a cap. We suggest this might be done by confining to Cabinet Ministers (or Ministers in charge of departments) the right to appoint special advisers and by limiting the number of special advisers that each Cabinet Minister should be able to appoint. (paragraph 296)

466._Special advisers are by the nature of their role involved in the formulation of the policy the Government is advocating but may in some contexts be well placed to justify its purpose and effectiveness. Where special advisers are used in such a role, it should be made clear that they are acting as special advisers and not as regular civil servants. (paragraph 299)

467._We have recommended in paragraph 296 that the Code of Conduct for Special Advisers be amended to make explicit the functions that special advisers may not perform. As with the other codes, we are not persuaded by arguments for a formal Parliamentary approval mechanism. The most appropriate form of Parliamentary scrutiny of the code is that undertaken by select committees, particularly the Public Administration Select Committee. (paragraph 300)

468._The power to restructure the machinery of government should remain with the Prime Minister. We agree there should be better Parliamentary scrutiny of such changes but this is a matter for the appropriate select committees rather than through legislation. We encourage departmental select committees to take a more pro-active role in this area, and to summon Secretary of State at an early opportunity after their appointment to enable Members to examine their objectives and priorities. (paragraph 303)

469._The Draft Bill should be amended to require a set of principles governing business appointments for former civil servants to be drawn up which, like the Civil Service Code, should be laid before Parliament and subject to scrutiny by the Public Administration Select Committee. (paragraph 305)

Chapter 7: War powers

470._We agree that there is a case for strengthening Parliamentary involvement in armed conflict decisions. We also agree with the House of Lords Constitution Committee that the Government's detailed resolution approach is a well balanced and effective way of proceeding. (paragraph 318)

471._We share the widespread concern amongst witnesses about the difficulty of effectively defining 'a conflict decision'. We therefore recommend that the Government, in consultation with key stakeholders, take more time to come up with an effective definition of 'a conflict decision' before bringing any proposals forward. In particular, we suggest that the Government investigate the possibility of identifying those deployments that should be excluded from the definitions. (paragraph 321)

472._In respect of the war powers proposals, we agree that it is appropriate that the Executive should retain discretionary powers over such issues as the information provided to Parliament, the timing of a vote, and a judgment as to whether the exceptional circumstances procedure should apply. We also recognise that the Prime Minister is in the best position to make an informed decision on such factors. We also agree with the Government that a retrospective approval process for conflict decisions is not desirable. (paragraph 332)

473._We agree with the Government that deployments involving members of the special forces, and other forces assisting them, should be excepted from the requirement for Parliamentary approval. (paragraph 335)

474._We note that in due course, the House of Commons Modernisation Committee will bring forward proposals on whether Members of the House of Commons should be able to request a recall of Parliament. However, we still think it appropriate, for the avoidance of doubt, for the Government to give an undertaking that it will always arrange for a recall of Parliament in order to allow for Parliamentary approval of a deployment. (paragraph 338)

475._We recommend that the Government take steps to ensure that ongoing deployments are subject to effective Parliamentary scrutiny. (paragraph 341)

476._We agree with the Government's proposal that the House of Lords should hold a debate to inform the deliberations of the House of Commons, but not have a vote, at least so long as the current composition of the Lords is retained. However we emphasize that the procedural arrangements of the House of Lords are a matter solely for that House. We therefore recommend that a procedure for the holding of such debates in the Lords be developed in parallel with the proposed House of Commons resolution. (paragraph 344)

477._We believe that the Government's proposals for Parliamentary scrutiny of deployment decisions, in tandem with our recommendations, will provide a sufficient degree of Parliamentary scrutiny, and that therefore no additional mechanisms such as a new Parliamentary committee are required. (paragraph 346)

478._We conclude that, subject to our comments above, the Government's proposal for a detailed war powers resolution is the best way to proceed. (paragraph 347)

Chapter 8: Constitutional renewal?

479._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. (paragraph 354)

480._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. (paragraph 357)

481._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. (paragraph 363)

482._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. (paragraph 376)

483._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. (paragraph 377)

484._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. (paragraph 378)

485._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. (paragraph 379)

486._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 Draft Bill. (paragraph 380)

487._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. (paragraph 381)

488._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. (paragraph 385)

489._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. (paragraph 389)

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195   Constitutional Affairs Committee, 5th Report (2006-07): Constitutional Role of the Attorney General (HC306), paragraph 86 Back

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Prepared 31 July 2008